EXHIBIT 4
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.,
Depositor
MIDLAND LOAN SERVICES, INC.,
Master Servicer No. 1
WACHOVIA BANK, NATIONAL ASSOCIATION
Master Servicer No. 2
X.X. XXXXXX COMPANY, INC.,
Special Servicer
XXXXX FARGO BANK, N.A.
Trustee
and
LASALLE BANK NATIONAL ASSOCIATION
Co-Trustee
POOLING AND SERVICING AGREEMENT
Dated as of
March 1, 2007
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-LDP10
Commercial Mortgage Pass-Through Certificates
Series 2007-LDP10
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.................................................
Section 1.02 Certain Calculations..........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans..................................
Section 2.02 Acceptance by Trustee.........................................
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or
Substitution of Mortgage Loans for Defects in Mortgage
Files and Breaches of Representations and Warranties.........
Section 2.04 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests.........................................
Section 2.05 Grantor Trust Designations....................................
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration of
the Mortgage Loans...........................................
Section 3.02 Collection of Mortgage Loan Payments..........................
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts...........................................
Section 3.04 The Certificate Account, the Lower-Tier, the Middle-Tier
Distribution Account and Upper-Tier Distribution
Accounts, the Companion Distribution Account, the
Interest Reserve Account, the Gain-on-Sale Reserve
Account, the Excess Interest Distribution Account and
the Floating Rate Accounts...................................
Section 3.05 Permitted Withdrawals from the Certificate Accounts, the
Distribution Accounts, the Companion Distribution
Account and the Floating Rate Account........................
Section 3.06 Investment of Funds in the Certificate Accounts, the
Distribution Accounts, the Gain-on-Sale Reserve Account,
the Interest Reserve Account and the REO Account.............
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage........................................
Section 3.08 Enforcement of Due-on-Sale Clauses; Assumption Agreements.....
Section 3.09 Realization Upon Defaulted Mortgage Loans.....................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files...............
Section 3.11 Servicing Compensation........................................
Section 3.12 Inspections; Collection of Financial Statements...............
Section 3.13 [RESERVED]....................................................
Section 3.14 [RESERVED]....................................................
Section 3.15 Access to Certain Information.................................
Section 3.16 Title to REO Property; REO Account............................
Section 3.17 Management of REO Property....................................
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties...........
Section 3.19 Additional Obligations of the Applicable Master Servicer
and Special Servicer.........................................
Section 3.20 Modifications, Waivers, Amendments and Consents...............
Section 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Recordkeeping; Asset Status Report.................
Section 3.22 Sub-Servicing Agreements......................................
Section 3.23 Representations, Warranties and Covenants of the Master
Servicers....................................................
Section 3.24 Representations, Warranties and Covenants of the Special
Servicer.....................................................
Section 3.25 Interest Reserve Account and Excess Interest Distribution
Account......................................................
Section 3.26 Directing Certificateholder Contact with Master Servicers.....
Section 3.27 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of
Directing Certificateholder..................................
Section 3.28 Intercreditor Agreements......................................
Section 3.29 Companion Paying Agent........................................
Section 3.30 Companion Register............................................
Section 3.31 Swap Contracts................................................
Section 3.32 Excess Interest Distribution Account..........................
Section 3.33 Certain Matters Relating to the Non-Serviced Mortgage
Loans........................................................
Section 3.34 Additional Matters Relating to Certain of the Mortgage
Loans........................................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions.................................................
Section 4.02 Statements to Certificateholders; CMSA Investor Reporting
Package (IRP)s...............................................
Section 4.03 P&I Advances..................................................
Section 4.04 Allocation of Collateral Support Deficit......................
Section 4.05 Appraisal Reductions..........................................
Section 4.06 Certificate Deferred Interest.................................
Section 4.07 Grantor Trust Reporting.......................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates..............................................
Section 5.02 Registration of Transfer and Exchange of Certificates.........
Section 5.03 Book-Entry Certificates.......................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.............
Section 5.05 Persons Deemed Owners.........................................
Section 5.06 Certificate Ownership Certification...........................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS,
THE SPECIAL SERVICER AND
THE DIRECTING CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Master Servicers and the
Special Servicer.............................................
Section 6.02 Merger, Consolidation or Conversion of the Depositor, the
Master Servicers or the Special Servicer.....................
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicers, the Special Servicer and Others...................
Section 6.04 Master Servicers and Special Servicer Not to Resign...........
Section 6.05 Rights of the Depositor in Respect of the Master
Servicers and the Special Servicer...........................
Section 6.06 The Master Servicers and the Special Servicer as
Certificate Owner............................................
Section 6.07 The Directing Certificateholder...............................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Master Servicer and Special Servicer
Termination..................................................
Section 7.02 Trustee to Act; Appointment of Successor......................
Section 7.03 Notification to Certificateholders............................
Section 7.04 Waiver of Events of Default...................................
Section 7.05 Co-Trustee as Maker of Advances...............................
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CO-TRUSTEE
Section 8.01 Duties of the Trustee and Co-Trustee..........................
Section 8.02 Certain Matters Affecting the Trustee and Co-Trustee..........
Section 8.03 Trustee and Co-Trustee Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans................
Section 8.04 Trustee and Co-Trustee May Own Certificates...................
Section 8.05 Fees and Expenses of Trustee and Co-Trustee;
Indemnification of Trustee and Co-Trustee....................
Section 8.06 Eligibility Requirements for Trustee and Co-Trustee...........
Section 8.07 Resignation and Removal of the Trustee and Co-Trustee.........
Section 8.08 Successor Trustee and Co-Trustee..............................
Section 8.09 Merger or Consolidation of Trustee and Co-Trustee.............
Section 8.10 Appointment of Co-Trustee or Separate Trustee.................
Section 8.11 Appointment of Custodians.....................................
Section 8.12 Access to Certain Information.................................
Section 8.13 Representations and Warranties of the Trustee.................
Section 8.14 Representations and Warranties of the Co-Trustee..............
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans...............................................
Section 9.02 Additional Termination Requirements...........................
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration..........................................
Section 10.02 Use of Agents.................................................
Section 10.03 Depositor, Master Servicers and Special Servicer to
Cooperate with Trustee.......................................
Section 10.04 Appointment of REMIC Administrators...........................
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness.........................
Section 11.02 Succession; Subcontractors....................................
Section 11.03 Filing Obligations............................................
Section 11.04 Form 10-D Filings.............................................
Section 11.05 Form 10-K Filings.............................................
Section 11.06 Xxxxxxxx-Xxxxx Certification..................................
Section 11.07 Form 8-K Filings..............................................
Section 11.08 Form 15 Filing................................................
Section 11.09 Annual Compliance Statements..................................
Section 11.10 Annual Reports on Assessment of Compliance with Servicing
Criteria.....................................................
Section 11.11 Annual Independent Public Accountants' Servicing Report.......
Section 11.12 Indemnification...............................................
Section 11.13 Amendments....................................................
Section 11.14 Regulation AB Notices.........................................
Section 11.15 Certain Matters Relating to the Future Securitization of
the Serviced Pari Passu Companion Loans......................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment.....................................................
Section 12.02 Recordation of Agreement; Counterparts........................
Section 12.03 Limitation on Rights of Certificateholders....................
Section 12.04 Governing Law.................................................
Section 12.05 Notices.......................................................
Section 12.06 Severability of Provisions....................................
Section 12.07 Grant of a Security Interest..................................
Section 12.08 Successors and Assigns; Third Party Beneficiaries.............
Section 12.09 Article and Section Headings..................................
Section 12.10 Notices to the Rating Agencies................................
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-1S Certificate
Exhibit A-3 Form of Class A-2 Certificate
Exhibit A-4 Form of Class A-2S Certificate
Exhibit A-5 Form of Class A-2SFL Certificate
Exhibit A-6 Form of Class A-3 Certificate
Exhibit A-7 Form of Class A-3S Certificate
Exhibit A-8 Form of Class A-1A Certificate
Exhibit A-9 Form of Class X Certificate
Exhibit A-10 Form of Class A-M Certificate
Exhibit A-11 Form of Class A-MS Certificate
Exhibit A-12 Form of Class A-J Certificate
Exhibit A-13 Form of Class A-JFL Certificate
Exhibit A-14 Form of Class A-JS Certificate
Exhibit A-15 Form of Class B-S Certificate
Exhibit A-16 Form of Class C-S Certificate
Exhibit A-17 Form of Class D-S Certificate
Exhibit A-18 Form of Class B Certificate
Exhibit A-19 Form of Class C Certificate
Exhibit A-20 Form of Class D Certificate
Exhibit A-21 Form of Class E Certificate
Exhibit A-22 Form of Class E-S Certificate
Exhibit A-23 Form of Class F Certificate
Exhibit A-24 Form of Class F-S Certificate
Exhibit A-25 Form of Class G Certificate
Exhibit A-26 Form of Class G-S Certificate
Exhibit A-27 Form of Class H Certificate
Exhibit A-28 Form of Class H-S Certificate
Exhibit A-29 Form of Class J Certificate
Exhibit A-30 Form of Class K Certificate
Exhibit A-31 Form of Class L Certificate
Exhibit A-32 Form of Class M Certificate
Exhibit A-33 Form of Class N Certificate
Exhibit A-34 Form of Class P Certificate
Exhibit A-35 Form of Class NR Certificate
Exhibit A-36 Form of Class S Certificate
Exhibit A-37 Form of Class R Certificate
Exhibit A-38 Form of Class MR Certificate
Exhibit A-39 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Investment Representation Letter
Exhibit D-1 Form of Transfer Affidavit
Exhibit D-2 Form of Transferor Letter
Exhibit E Form of Request for Release
Exhibit F Form of ERISA Representation Letter
Exhibit G Form of Statement to Certificateholders
Exhibit H Form of Omnibus Assignment
Exhibit I-1 Form of Regulation S Transfer Certificate during Restricted
Period
Exhibit I-2 Form of Regulation S Transfer Certificate after Restricted
Period
Exhibit J Form of Purchase Option Notice
Exhibit K Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate during
Restricted Period
Exhibit L [RESERVED]
Exhibit M Form of Notice Relating to the Skyline Portfolio Mortgage Loan
and the Solana Mortgage Loan
Exhibit N Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate after
Restricted Period
Exhibit O Form of Transfer Certificate for Regulation S Book-Entry
Certificate to Rule 144A Global Book-Entry Certificate during
Restricted Period
Exhibit P Form of Transfer Certificate for Regulation S Book-Entry
Certificate during Restricted Period
Exhibit Q Form of Certification to be Provided with Form 10-K
Exhibit R-1-1 Form of Certification to be Provided to Depositor by Trustee
Exhibit R-1-2 Form of Certifiation to be Provided to Depositor by Co-Trustee
Exhibit R-2 Form of Certification to be Provided to Depositor by Master
Servicer No. 1
Exhibit R-3 Form of Certification to be Provided to Depositor by Master
Servicer No. 2
Exhibit R-4 Form of Certification to be Provided to Depositor by Special
Servicer
Exhibit S Initial Companion Holders
Exhibit T [RESERVED]
Exhibit U Information Request from Certificateholder, Beneficial Owner
or Prospective Purchaser
Exhibit V Trustee Certification/Exception Report
Exhibit W Servicing Criteria to be Addressed in Assessment of Compliance
Exhibit X Additional Form 10-D Disclosure
Exhibit Y Additional Form 10-K Disclosure
Exhibit Z Form 8-K Disclosure Information
Exhibit AA Additional Disclosure Notification
Exhibit BB Servicing and Subservicing Agreements
Exhibit CC Swap Contract Related to the Class A-2SFL Certificates
Exhibit DD Swap Contract Related to the Class A-JFL Certificates
Exhibit EE Release Oversight Loans
Exhibit FF Tenants-In-Common Oversight Loans
Schedule 1 Mortgage Loans Containing Additional Debt
Schedule 2 Mortgage Loans that Initially Pay Interest Only
Schedule 3 Assumption Fees on Certain Mortgage Loans
Schedule 4 Mortgage Loans with Earnouts, Holdbacks or Letters of Credit
This Pooling and Servicing Agreement (the "Agreement") is dated
and effective as of March 1, 2007, among X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., as Depositor, Midland Loan Services, Inc., as
Master Servicer No. 1, Wachovia Bank, National Association, as Master
Servicer No. 2, X.X. Xxxxxx Company, Inc., as Special Servicer, Xxxxx Fargo
Bank, N.A., as Trustee and LaSalle Bank National Association, as Co-Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which in the aggregate will evidence the
entire beneficial ownership interest in the trust fund (the "Trust Fund") to be
created hereunder, the primary assets of which will be a pool of commercial,
multifamily and manufactured housing community mortgage loans (the "Mortgage
Loans"). As provided herein, the Trustee shall elect or shall cause an election
to be made to treat the Trust Fund (exclusive of the Class A-2SFL Regular
Interest, the Class A-JFL Regular Interest, the Swap Contracts, the Floating
Rate Accounts, the Excess Interest, the Excess Interest Distribution Account and
the proceeds thereof) for federal income tax purposes as three separate real
estate mortgage investment conduits (the "Upper-Tier REMIC", the "Middle-Tier
REMIC" and the "Lower-Tier REMIC" as described herein).
The parties intend that the portion of the Trust Fund representing
(i) the Excess Interest, the Excess Interest Distribution Account and the
proceeds thereof and (ii) the Class A-2SFL Regular Interest, the Class A-JFL
Regular Interest, the Swap Contracts, the Floating Rate Accounts and the
proceeds thereof will be treated as a grantor trust under subpart E of Part I of
subchapter J of the Code and that the beneficial interests therein will be
represented by the Class A-2SFL and Class A-JFL Certificates, respectively.
LOWER-TIER REMIC
The Class L-RB, Class L-RQ, Class L-SB and Class L-SQ Uncertificated
Interests will evidence "regular interests" in the Lower-Tier REMIC created
hereunder. The sole Class of "residual interests" in the Lower-Tier REMIC will
be evidenced by the Class LR Certificates.
The following table sets forth the Original Lower-Tier Principal
Amounts and per annum rates of interest for the Uncertificated Lower-Tier
Interests and the Class LR Certificates:
Interest Original Lower-Tier
Class Designation Rate Principal Amount
----------------- -------- -----------------------------
Class L-RB (1) 0.001% Group Subordinate
Amount of Loan
Group R (4)
Class L-RQ (1) Remainder Group R Balance (5)
Class L-SB (2) 0.001% Group Subordinate
Amount of Loan Group S(4)
Class L-SQ (2) Remainder Group S Balance (5)
Class LR None (3) None(3)
------------
(1) The interest rate for such Class of Uncertificated Lower-Tier Interests
shall be the Group R WAC Rate (computed to at least eight decimal places).
(2) The interest rate for such Class of Uncertificated Lower-Tier Interests
shall be the Group S WAC Rate (computed to at least eight decimal places).
(3) The Class LR Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Yield Maintenance Charges. Any Available Distribution Amount remaining in
the Lower-Tier Distribution Account after distributing the Lower-Tier
Regular Distribution Amount shall be distributed to the Holders of the
Class LR Certificates (but only to the extent of the Available
Distribution Amount for such Distribution Date, if any, remaining in the
Lower-Tier Distribution Account).
(4) As of the Closing Date and any date of determination, (i) the Lower-Tier
Principal Amount of the Class L-RB Interest shall equal 0.001% of the
Group Subordinate Amount of Loan Group R and (ii) the Lower-Tier Principal
Amount of the Class L-SB Interest shall equal 0.001% of the Group
Subordinate Amount of Loan Group S (in each case, computed to at least
eight decimal places).
(5) As of the Closing Date and any date of determination, (i) the Lower-Tier
Principal Amount of the Class L-RQ Interest shall equal the excess of the
aggregate Stated Principal Balance of the Mortgage Loans in Loan Group R
over the Lower-Tier Principal Amount of the Class L-RB Interest and (ii)
the Lower-Tier Principal Amount of the Class L-SQ Interest shall equal the
excess of the aggregate Stated Principal Balance of the Mortgage Loans in
Loan Group S over the Lower-Tier Principal Amount of the Class L-SB
Interest.
MIDDLE-TIER REMIC
The Class MA-1, Class MA-1S, Class MA-2, Class MA-2S, Class MA-2SFL,
Class MA-3, Class MA-3S, Class MA-1A, Class MA-M, Class MA-MS, Class MA-J, Class
MA-JFL, Class MA-JS, Class MB, Class MB-S, Class MC, Class MC-S, Class MD, Class
MD-S, Class ME, Class ME-S, Class MF, Class MF-S, Class MG, Class MG-S, Class
MH, Class MH-S, Class MJ, Class MK, Class ML, Class MM, Class MN, Class MP, and
Class MNR Uncertificated Interests will evidence "regular interests" in the
Middle-Tier REMIC created hereunder. The sole Class of "residual interests" in
the Middle-Tier REMIC will be evidenced by the Class MR Certificates.
The following table sets forth the Original Middle-Tier Principal
Amounts and per annum rates of interest for the Uncertificated Middle-Tier
Interests and the Class MR Certificates:
Interest Original Middle-Tier
Class Designation Rate Principal Amount
----------------- -------------- --------------------
Class MA-1 (1) $41,831,000
Class MA-1S (2) $200,000,000
Class MA-2 (1) $250,000,000
Class MA-2S (2) $688,857,000
Class MA-2SFL (2) $150,000,000
Class MA-3 (1) $1,714,136,000
Class MA-3S (2) $179,937,000
Class MA-1A (1) $507,300,000
Class MA-M (1) $359,038,000
Class MA-MS (2) $174,114,000
Class MA-J (1) $200,694,000
Class MA-JFL (1) $100,000,000
Class MA-JS (2) $145,820,000
Class MB (1) $71,808,000
Class MB-S (2) $34,823,000
Class MC (1) $26,928,000
Class MC-S (2) $13,058,000
Class MD (1) $49,367,000
Class MD-S (2) $23,941,000
Class ME (1) $40,392,000
Class ME-S (2) $19,588,000
Class MF (1) $44,880,000
Class MF-S (2) $21,764,000
Class MG (1) $44,880,000
Class MG-S (2) $21,764,000
Class MH (1) $40,392,000
Class MH-S (2) $19,588,000
Class MJ (3) $19,993,000
Class MK (3) $19,993,000
Class ML (3) $13,329,000
Class MM (3) $6,665,000
Class MN (3) $6,664,000
Class MP (3) $13,329,000
Class MNR (3) $66,644,186
Class MR None(4) None(4)
------------
(1) The interest rate for such Class of Uncertificated Middle-Tier Interests
shall be the Group R WAC Rate.
(2) The interest rate for such Class of Uncertificated Middle-Tier Interests
shall be the Group S WAC Rate.
(3) The interest rate for such Class of Uncertificated Middle-Tier Interests
shall be the Pool WAC Rate. For federal income tax purposes, the
Pass-Through Rate for such Class of Uncertificated Middle-Tier Interest
for any Distribution Date shall be expressed as a per annum rate equal to
the weighted average of (i) the interest rate for the Class L-RB Interest
and (ii) the interest rate for the Class L-SB Interest, weighted, for each
of the foregoing determinations, on the basis of the respective Lower-Tier
Principal Amount of each such Lower-Tier Regular Interest (computed to at
least eight decimal places), immediately prior to such Distribution Date.
(4) The Class MR Interest, evidenced by the Class MR Certificates, does not
have a Certificate Balance or Notional Amount, does not bear interest and
will not be entitled to distributions of Yield Maintenance Charges. Any
Available Distribution Amount remaining in the Middle-Tier Distribution
Account after distributing the Middle-Tier Regular Distribution Amount
shall be distributed to the Holders of the Class MR Certificates (but only
to the extent of the Available Distribution Amount for such Distribution
Date, if any, remaining in the Middle-Tier Distribution Account) in
respect of the Class MR Interest.
UPPER-TIER REMIC
The Class A-1, Class A-1S, Class A-2, Class A-2S, Class A-3, Class
A-3S, Class A-1A, Class A-M, Class A-MS, Class A-J, Class A-JS, Class B, Class
B-S, Class C, Class C-S, Class D, Class D-S, Class E, Class E-S, Class F, Class
F-S, Class G, Class G-S, Class H, Class H-S, Class J, Class K, Class L, Class M,
Class N, Class P, Class NR and Class X Certificates, the Class A-2SFL Regular
Interest and the Class A-JFL Regular Interest will evidence "regular interests"
in the Upper-Tier REMIC created hereunder. The sole Class of "residual
interests" in the Upper-Tier REMIC will be evidenced by the Class R
Certificates.
The following table sets forth the designation, the pass-through
rate (the "Pass-Through Rate"), the aggregate initial principal amount (the
"Original Certificate Balance") or Notional Amount ("Original Notional Amount"),
as applicable, and the initial ratings given each Class by the Rating Agencies
for each Class of Certificates, the Class A-2SFL Regular Interest and the Class
A-JFL Regular Interest comprising the interests in the Upper-Tier REMIC created
hereunder:
Initial Original Certificate
Pass-Through Balance or Notional Ratings(1)
Rate Amount (Xxxxx'x/Fitch)
----------------------------------------- ------------ -------------------- ---------------
Class A-1 Certificates(2)(3) 5.1220% $41,831,000 Aaa/AAA
Class A-1S Certificates(2) 4.9300% $200,000,000 Aaa/AAA
Class A-2 Certificates(2)(3) 5.4340% $250,000,000 Aaa/AAA
Class A-2S Certificates(2) 5.3050% $688,857,000 Aaa/AAA
Class A-2SFL Regular Interest(2)(4)(5) 5.1870% $150,000,000 Aaa/AAA
Class A-3 Certificates(2)(3) 5.4200% $1,714,136,000 Aaa/AAA
Class A-3S Certificates(2) 5.3170% $179,937,000 Aaa/AAA
Class A-1A Certificates(2)(3) 5.4390% $507,300,000 Aaa/AAA
Class A-M Certificates(2) (7) 5.4640% $359,038,000 Aaa/AAA
Class A-MS Certificates(2) (8) 5.3420% $174,114,000 Aaa/AAA
Class A-J Certificates(2) (7) 5.5030% $200,694,000 Aaa/AAA
Class A-JFL Regular Interest(2)(4)(5) (7) 5.4380% $100,000,000 Aaa/AAA
Class A-JS Certificates(2)(8) 5.3950% $145,820,000 Aaa/AAA
Class B Certificates(2)(7) 5.5820% $71,808,000 Aa2/AA
Class B-S Certificates(2)(8) 5.4370% $34,823,000 Aa2/AA
Class C Certificates(2)(7) 5.6120% $26,928,000 Aa3/AA-
Class C-S Certificates(2)(8) 5.4660% $13,058,000 Aa3/AA-
Class D Certificates(2) (9) 5.7676% $49,367,000 A2/A
Class D-S Certificates(2)(8) 5.5160% $23,941,000 A2/A
Class E Certificates(2) (9) 5.8656% $40,392,000 A3/A-
Class E-S Certificates(2)(11) 5.7356% $19,588,000 A3/A-
Class F Certificates(2)(10) 5.9266% $44,880,000 Baa1/BBB+
Class F-S Certificates(2)(12) 5.9296% $21,764,000 Baa1/BBB+
Class G Certificates(2)(10) 5.9266% $44,880,000 Baa2/BBB
Class G-S Certificates(2)(12) 5.9296% $21,764,000 Baa2/BBB
Class H Certificates(2)(10) 5.9266% $40,392,000 Baa3/BBB-
Class H-S Certificates(2)(12) 5.9296% $19,588,000 Baa3/BBB-
Class J Certificates(13) 5.0810% $19,993,000 Ba1/BB+
Class K Certificates(13) 5.0810% $19,993,000 Ba2/BB
Class L Certificates(13) 5.0810% $13,329,000 Ba3/BB-
Class M Certificates(13) 5.0810% $6,665,000 B1/B+
Class N Certificates(13) 5.0810% $6,664,000 B2/B
Class P Certificates(13) 5.0810% $13,329,000 B3/B-
Class NR Certificates(13) 5.0810% $66,644,186 */*/*
Class R Certificates N/A(14) N/A(14) */*/*
Class X Certificates 0.5269%(15) $5,331,517,186 (16) Aaa/AAA
------------
(1) The Certificates marked with an asterisk have not been rated by the
applicable Rating Agency.
(2) For purposes of making distributions on the Class A-1, Class A-1S, Class
A-2, Class A-2S, Class A-3, Class A-3S, Class A-1A, Class A-M, Class A-MS,
Class A-J, Class A-JS, Class B, Class B-S, Class C, Class C-S, Class D,
Class D-S, Class E, Class E-S, Class F, Class F-S, Class G, Class G-S,
Class H, Class H-S Certificates and the Class A-2SFL and Class A-JFL
Regular Interests, the pool of Mortgage Loans will be deemed to consist of
two distinct Loan Groups, Loan Group S and Loan Group R.
(3) For purposes of making distributions to the Class A-1, Class A-2, Class
A-3 and Class A-1A Certificates, the Group R Mortgage Loans will be deemed
to consist of two distinct Loan Groups, Loan Group R-1 and Loan Group R-2.
(4) The Class A-2SFL Regular Interest will be uncertificated and will be
transferred to the Trust Fund on the Closing Date, and the Trust will
issue the Class A-2SFL Certificates in exchange therefor. The Pass-Through
Rate applicable to the Class A-2SFL Regular Interest on each Distribution
Date will be equal to the Class A-2SFL Regular Interest Pass-Through Rate.
The Pass-Through Rate applicable to the Class A-2SFL Certificates on each
Distribution Date will be equal to the Class A-2SFL Pass-Through Rate. The
Class A-JFL Regular Interest will be uncertificated and will be
transferred to the Trust Fund on the Closing Date, and the Trust will
issue the Class A-JFL Certificates in exchange therefor. The Pass-Through
Rate applicable to the Class A-JFL Regular Interest on each Distribution
Date will be equal to the Class A-JFL Regular Interest Pass-Through Rate.
The Pass-Through Rate applicable to the Class A-JFL Certificates on each
Distribution Date will be equal to the Class A-JFL Pass-Through Rate.
(5) The Certificate Balance of the Class A-2SFL Certificates will be equal at
all times to the Certificate Balance of the Class A-2SFL Regular Interest.
The Original Certificate Balance of the Class A-2SFL Certificates will be
equal to $150,000,000. The Certificate Balance of the Class A-JFL
Certificates will be equal at all times to the Certificate Balance of the
Class A-JFL Regular Interest. The Original Certificate Balance of the
Class A-JFL Certificates will be equal to $100,000,000.
(6) The Class A-2SFL Regular Interest and Class A-JFL Regular Interest will
not be rated. The ratings shown are with respect to the Class A-2SFL
Certificates and Class A-JFL Certificates and only reflect receipt of
interest at the Class A-2SFL Regular Interest and Class A-JFL Regular
Interest Pass-Through Rate, respectively.
(7) Subject to a maximum Pass-Through Rate equal to the Group R WAC Rate.
(8) Subject to a maximum Pass-Through Rate equal to the Group S WAC Rate.
(9) The Pass-Through Rate for any Distribution Date for the Class D and Class
E Certificates will be a per annum rate equal to the Group R WAC Rate for
the Distribution Date minus 0.1590% and 0.0610%, respectively.
(10) The Pass-Through Rate for any Distribution Date for the Class H
Certificates will be a per annum rate equal to the Group R WAC Rate.
(11) The Pass-Through Rate for any Distribution Date for the Class E-S will be
a per annum rate equal to the Group S WAC Rate for the Distribution Date
minus 0.1940%.
(12) The Pass-Through Rate for any Distribution Date for the Class G-S and
Class H-S Certificates will be a per annum rate equal to the Group S WAC
Rate.
(13) Subject to a maximum Pass-Through Rate equal to the Pool WAC Rate.
(14) The Class R Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Yield Maintenance Charges. Any Available Distribution Amount remaining in
the Upper-Tier Distribution Account, after all required distributions
under this Agreement have been made to each other Class of Certificates,
will be distributed to the Holders of the Class R Certificates.
(15) The Pass Through Rate for the Class X Certificates will be calculated in
accordance with the definition of "Class X Pass Through Rate".
(16) The Class X Certificates will not have a Certificate Balance; rather, such
Class of Certificates will accrue interest as provided herein on the Class
X Notional Amount.
As of the close of business on the Cut-off Date, the Mortgage Loans
had an aggregate principal balance, after application of all payments of
principal due on or before such date, whether or not received, equal to
$5,331,517,186.
Eight (8) mortgage loans (or groups of mortgage loans), the 000
Xxxxxxxxx Xxxxxx Pari Passu Companion Loans, the Skyline Portfolio Pari Passu
Companion Loans, the Solana Pari Passu Companion Loan, the Americold Pool 2 Pari
Passu Companion Loans, the Anchor Government Assets AB Companion Loan, the
Timberline Apartments AB Companion Loan, the Turtle Creek Park AB Companion Loan
and the Overland Park Trade Center AB Companion Loan (collectively, the
"Companion Loans"), are not part of the Trust Fund, but are secured by the same
Mortgage that secures the related Mortgage Loan (each, with the exception of the
000 Xxxxxxxxx Xxxxxx Mortgage Loan, the Skyline Portfolio Mortgage Loan, the
Solana Mortgage Loan and the Americold Pool 2 Mortgage Loan, an "AB Mortgage
Loan" and, collectively, the "AB Mortgage Loans") that is part of the Trust
Fund. As and to the extent provided herein, the Companion Loans will be serviced
and administered in accordance with this Agreement. Amounts attributable to the
Companion Loans will not be assets of the Trust Fund, and (except to the extent
that such amounts are payable or reimbursable to any party to this Agreement)
will be owned by the related Companion Holders.
The 000 Xxxxxxxxx Xxxxxx Whole Loan consists of the 000 Xxxxxxxxx
Xxxxxx Mortgage Loan and the 000 Xxxxxxxxx Xxxxxx Pari Passu Companion Loans.
The 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the 000 Xxxxxxxxx Xxxxxx Pari Passu
Companion Loans are pari passu with each other. The 000 Xxxxxxxxx Xxxxxx
Mortgage Loan is part of the Trust Fund. The 599 Lexington Avenue Pari Passu
Companion Loans are not part of the Trust Fund. The 000 Xxxxxxxxx Xxxxxx
Mortgage Loan and the 000 Xxxxxxxxx Xxxxxx Pari Passu Companion Loans will be
serviced and administered in accordance with this Agreement and the 000
Xxxxxxxxx Xxxxxx Intercreditor Agreement.
The Skyline Portfolio Whole Loan consists of the Skyline Portfolio
Mortgage Loan and the Skyline Portfolio Pari Passu Companion Loans. The Skyline
Portfolio Mortgage Loan and the Skyline Portfolio Pari Passu Companion Loans are
pari passu with each other. The Skyline Portfolio Mortgage Loan is part of the
Trust Fund. The Skyline Portfolio Pari Passu Companion Loans are not part of the
Trust Fund. The Skyline Portfolio Mortgage Loan and the Skyline Portfolio Pari
Passu Companion Loans will be serviced and administered in accordance with the
BACM 2007-1 Pooling Agreement and the Skyline Portfolio Intercreditor Agreement.
The Solana Whole Loan consists of the Solana Mortgage Loan and the
Solana Pari Passu Companion Loan. The Solana Mortgage Loan and the Solana Pari
Passu Companion Loan are pari passu with each other. The Solana Mortgage Loan is
part of the Trust Fund. The Solana Pari Passu Companion Loan is not part of the
Trust Fund. The Solana Mortgage Loan and the Solana Pari Passu Companion Loan
will be serviced and administered in accordance with the BACM 2007-1 Pooling
Agreement and the Solana Intercreditor Agreement.
The Americold Pool 2 Whole Loan consists of the Americold Pool 2
Mortgage Loan and the Americold Pool 2 Pari Passu Companion Loans. The Americold
Pool 2 Mortgage Loan and the Americold Pool 2 Pari Passu Companion Loans are
pari passu with each other. The Americold Pool 2 Mortgage Loan is part of the
Trust Fund. The Americold Pool 2 Pari Passu Companion Loans are not part of the
Trust Fund. The Americold Pool 2 Mortgage Loan and the Americold Pool 2 Pari
Passu Companion Loans will be serviced and administered in accordance with the
JPMCC 2007-CIBC18 Pooling Agreement and the Americold Pool 2 Intercreditor
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, each Master Servicer, the Special Servicer, the Trustee and the
Co-Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement,
including in the Preliminary Statement, the following capitalized terms, unless
the context otherwise requires, shall have the meanings specified in this
Article.
"10-K Filing Deadline": As defined in Section 11.05.
"30/360 Mortgage Loans": The Mortgage Loans indicated as such in
the Mortgage Loan Schedule.
"599 Lexington Avenue A2 Pari Passu Companion Loan": With respect to
the 000 Xxxxxxxxx Xxxxxx Whole Loan, the related promissory note made by the
related Mortgagor and secured by the Mortgage on the Lexington Avenue Mortgaged
Property and designated as promissory note A2, which is not included in the
Trust and which is pari passu in right of payment to the 000 Xxxxxxxxx Xxxxxx
Mortgage Loan and the 000 Xxxxxxxxx Xxxxxx A3 Pari Passu Companion Loan and the
000 Xxxxxxxxx Xxxxxx A4 Pari Passu Companion Loan, to the extent set forth in
the related Mortgage Loan documents and as provided in the 000 Xxxxxxxxx Xxxxxx
Intercreditor Agreement.
"599 Lexington Avenue A3 Pari Passu Companion Loan": With respect to
the 000 Xxxxxxxxx Xxxxxx Whole Loan, the related promissory note made by the
related Mortgagor and secured by the Mortgage on the Lexington Avenue Mortgaged
Property and designated as promissory note A3, which is not included in the
Trust and which is pari passu in right of payment to the 000 Xxxxxxxxx Xxxxxx
Mortgage Loan and the 000 Xxxxxxxxx Xxxxxx A2 Pari Passu Companion Loan and the
000 Xxxxxxxxx Xxxxxx A4 Pari Passu Companion Loan, to the extent set forth in
the related Mortgage Loan documents and as provided in the 000 Xxxxxxxxx Xxxxxx
Intercreditor Agreement.
"599 Lexington Avenue A4 Pari Passu Companion Loan": With respect to
the 000 Xxxxxxxxx Xxxxxx Whole Loan, the related promissory note made by the
related Mortgagor and secured by the Mortgage on the Lexington Avenue Mortgaged
Property and designated as promissory note A4, which is not included in the
Trust and which is pari passu in right of payment to the 000 Xxxxxxxxx Xxxxxx
Mortgage Loan and the 000 Xxxxxxxxx Xxxxxx A2 Pari Passu Companion Loan and the
000 Xxxxxxxxx Xxxxxx A3 Pari Passu Companion Loan, to the extent set forth in
the related Mortgage Loan documents and as provided in the 000 Xxxxxxxxx Xxxxxx
Intercreditor Agreement.
"599 Lexington Avenue Companion Loan Securities": Any class of
securities backed, wholly or partially, by any 000 Xxxxxxxxx Xxxxxx Pari
Passu Companion Loan.
"599 Lexington Avenue Controlling Holder": The "Majority Lenders"
as defined in the 000 Xxxxxxxxx Xxxxxx Intercreditor Agreement.
"599 Lexington Avenue Intercreditor Agreement": The Intercreditor
Agreement, by and among the holders of the 000 Xxxxxxxxx Xxxxxx Notes, relating
to the relative rights of such holders of the 000 Xxxxxxxxx Xxxxxx Whole Loan,
as the same may be further amended in accordance with the terms thereof.
"599 Lexington Avenue Mortgage Loan": With respect to the 000
Xxxxxxxxx Xxxxxx Whole Loan, the Mortgage Loan that is included in the Trust
(identified as Mortgage Loan No. 2 on the Mortgage Loan Schedule), which is
designated as promissory note A1 and is pari passu in right of payment with the
000 Xxxxxxxxx Xxxxxx Pari Passu Companion Loans to the extent set forth in the
000 Xxxxxxxxx Xxxxxx Whole Loan and as provided in the 000 Xxxxxxxxx Xxxxxx
Intercreditor Agreement.
"599 Lexington Avenue Mortgaged Property": The Mortgaged Property
that secures the 000 Xxxxxxxxx Xxxxxx Whole Loan.
"599 Lexington Avenue Notes": The 000 Xxxxxxxxx Xxxxxx Mortgage
Loan and the 000 Xxxxxxxxx Xxxxxx Pari Passu Companion Loans.
"599 Lexington Avenue Pari Passu Companion Loan": Each of the 000
Xxxxxxxxx Xxxxxx A2 Pari Passu Companion Loan, the 000 Xxxxxxxxx Xxxxxx A3 Pari
Passu Companion Loan and the 000 Xxxxxxxxx Xxxxxx X0 Xxxx Xxxxx Companion Loan.
"599 Lexington Avenue Pari Passu Companion Loan Holder": Each
holder of a 000 Xxxxxxxxx Xxxxxx Pari Passu Companion Loan.
"599 Lexington Avenue Whole Loan": The 000 Xxxxxxxxx Xxxxxx Mortgage
Loan, together with the 000 Xxxxxxxxx Xxxxxx Pari Passu Companion Loans, each of
which is secured by the same Mortgage on the 000 Xxxxxxxxx Xxxxxx Mortgaged
Property. References herein to the 000 Xxxxxxxxx Xxxxxx Whole Loan shall be
construed to refer to the aggregate indebtedness under the 000 Xxxxxxxxx Xxxxxx
Notes.
"AB Mortgage Loan": As defined in the recitals to this Agreement.
"AB Whole Loan": Each of the Anchor Government Assets Whole Loan,
the Timberline Apartments Whole Loan, the Turtle Creek Park Whole Loan and the
Overland Park Trade Center Whole Loan.
"Acceptable Insurance Default": With respect to any Mortgage Loan or
Serviced Whole Loan that expressly requires the Mortgagor to maintain insurance
coverage for acts of terrorism, a default under the related Mortgage Loan
documents arising by reason of any failure on the part of the related Mortgagor
to maintain with respect to the related Mortgaged Property specific insurance
coverage with respect to, or an all-risk casualty insurance policy that does not
specifically exclude, terrorist or similar acts, and/or any failure on the part
of the related Mortgagor to maintain with respect to the related Mortgaged
Property insurance coverage with respect to damages or casualties caused by
terrorist or similar acts upon terms not materially less favorable than those in
place as of the Closing Date, as to which default the applicable Master Servicer
and the Special Servicer may forbear taking any enforcement action, provided,
that the applicable Master Servicer (with respect to Non-Specially Serviced
Mortgage Loans) or Special Servicer (with respect to Specially Serviced Mortgage
Loans), as applicable, may forbear taking any enforcement action; provided that
the Special Servicer has determined, in its reasonable judgment, based on
inquiry consistent with the Servicing Standards and subject to the consent of
the Directing Certificateholder (or, with respect to a Serviced Whole Loan,
after receiving no objection from the applicable Serviced Whole Loan Controlling
Holder), that either (a) such insurance is not available at commercially
reasonable rates and that such hazards are not at the time commonly insured
against for properties similar to the related Mortgaged Property and located in
or around the region in which such related Mortgaged Property is located, or (b)
such insurance is not available at any rate; provided, however, the Directing
Certificateholder (or, in the case of a Serviced Whole Loan, the applicable
Serviced Whole Loan Controlling Holder) will not have more than 30 days to
respond to the Special Servicer's request for consent; provided, further, that
upon the Special Servicer's determination, consistent with the Servicing
Standards, that exigent circumstances do not allow the Special Servicer to wait
for the consent of the Directing Certificateholder (or, in the case of a
Serviced Whole Loan, wait for any objection from the applicable Serviced Whole
Loan Controlling Holder), the Special Servicer will not be required to do so.
The Special Servicer shall be entitled to rely on insurance consultants in
making determinations described above. The costs of such insurance consultants
shall be paid from the applicable Certificate Account as a Servicing Advance to
the extent the Mortgage Loan documents do not prohibit such amounts from being
collected from the related Mortgagor and otherwise as an expense of the Trust
Fund.
"Accrued Certificate Interest": With respect to each Distribution
Date and each Class of Regular Certificates (other than the Class A-2SFL and
Class A-JFL Certificates) and the Class A-2SFL and Class A-JFL Regular
Interests, an amount equal to interest for the related Interest Accrual Period
at the Pass-Through Rate of such Class of Certificates or the Class A-2SFL or
Class A-JFL Regular Interest, as applicable, for such Distribution Date, accrued
on the related Certificate Balance (or with respect to the Class X Certificates,
the Notional Amount of such Class) outstanding immediately prior to such
Distribution Date (provided that for interest accrual purposes any distributions
in reduction of Certificate Balance or Notional Amount or reductions in
Certificate Balance or Notional Amount as a result of allocations of Collateral
Support Deficit on the Distribution Date occurring in an Interest Accrual Period
shall be deemed to have been made on the first day of such Interest Accrual
Period). Accrued Certificate Interest shall be calculated on the basis of a
360-day year consisting of twelve 30-day months.
"Accrued Interest From Recoveries": With respect to each
Distribution Date and any Class of Certificates (other than the Class X, Class
S, Class A-2SFL and Class A-JFL Certificates and the Residual Certificates), and
the Class A-2SFL and Class A-JFL Regular Interest that had an increase to its
Certificate Balance as a result of a recovery of Nonrecoverable Advances, an
amount equal to interest at the Pass-Through Rate applicable to that Class on
the amount of such increase to its Certificate Balance accrued from the
Distribution Date on which Collateral Support Deficit was allocated to such
Class as a result of the reimbursement of Nonrecoverable Advances from the Trust
to, but not including, the Distribution Date on which the Certificate Balance
was so increased.
"Act": The Securities Act of 1933, as it may be amended from time to
time.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in
the Mortgage Loan Schedule.
"Additional Debt": With respect to any Mortgage Loan, any debt owed
by the related Mortgagor to a party other than the lender under such Mortgage
Loan as of the Closing Date as set forth on Schedule 1 hereto, as increased or
decreased from time to time pursuant to the terms of the related subordinate
loan documents (including any subordination agreement).
"Additional Disclosure Notification": The form of notification to be
included with any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or Form 8-K Disclosure Information which is attached hereto as
Exhibit AA.
"Additional Exclusions": Exclusions in addition to those customarily
found in the insurance policies for mortgaged properties similar to the
Mortgaged Properties on September 11, 2001.
"Additional Form 10-D Disclosure": As defined in Section 11.04.
"Additional Form 10-K Disclosure": As defined in Section 11.05.
"Additional Servicer": Each Affiliate of the applicable Master
Servicer, the Special Servicer or any Mortgage Loan Seller that services any of
the Mortgage Loans and each Person who is not an Affiliate of the applicable
Master Servicer, other than the Special Servicer, who Services 10% or more of
the Mortgage Loans by unpaid principal balance as of any date of determination
pursuant to Article XI.
"Administrative Cost Rate": With respect to each Mortgage Loan, the
sum of the Servicing Fee Rate and the Trustee Fee Rate, in each case computed on
the basis of the Stated Principal Balance of the related Mortgage Loan and in
the same manner as interest is calculated on such Mortgage Loan.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent": As defined in Section 5.02(c)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"AIG": AIG Mortgage Capital, LLC and its successors in interest and
assigns.
"Americold Pool 2 A-1A Pari Passu Companion Loan": With respect to
the Americold Pool 2 Whole Loan, the related promissory note made by the related
Mortgagor and secured by the Mortgage on the Americold Pool 2 Mortgaged Property
and designated as promissory note A-1A, which is not included in the Trust and
which is pari passu in right of payment to the Americold Pool 2 Mortgage Loan
and the Americold Pool 2 A-1B Pari Passu Companion Loan, the Americold Pool 2
A-2A Pari Passu Companion Loan and the Americold Pool 2 A-2C Pari Passu
Companion Loan, to the extent set forth in the related Mortgage Loan documents
and as provided in the Americold Pool 2 Intercreditor Agreement.
"Americold Pool 2 A-1B Pari Passu Companion Loan": With respect to
the Americold Pool 2 Whole Loan, the related promissory note made by the related
Mortgagor and secured by the Mortgage on the Americold Pool 2 Mortgaged Property
and designated as promissory note A-1B, which is not included in the Trust and
which is pari passu in right of payment to the Americold Pool 2 Mortgage Loan
and the Americold Pool 2 A-1A Pari Passu Companion Loan, the Americold Pool 2
A-2A Pari Passu Companion Loan and the Americold Pool 2 A-2C Pari Passu
Companion Loan, to the extent set forth in the related Mortgage Loan documents
and as provided in the Americold Pool 2 Intercreditor Agreement.
"Americold Pool 2 A-2A Pari Passu Companion Loan": With respect to
the Americold Pool 2 Whole Loan, the related promissory note made by the related
Mortgagor and secured by the Mortgage on the Americold Pool 2 Mortgaged Property
and designated as promissory note A-2A, which is not included in the Trust and
which is pari passu in right of payment to the Americold Pool 2 Mortgage Loan
and the Americold Pool 2 A-1A Pari Passu Companion Loan, the Americold Pool 2
A-1B Pari Passu Companion Loan and the Americold Pool 2 A-2C Pari Passu
Companion Loan, to the extent set forth in the related Mortgage Loan documents
and as provided in the Americold Pool 2 Intercreditor Agreement.
"Americold Pool 2 A-2C Pari Passu Companion Loan": With respect to
the Americold Pool 2 Whole Loan, the related promissory note made by the related
Mortgagor and secured by the Mortgage on the Americold Pool 2 Mortgaged Property
and designated as promissory note A-2C, which is not included in the Trust and
which is pari passu in right of payment to the Americold Pool 2 Mortgage Loan
and the Americold Pool 2 A-1A Pari Passu Companion Loan, the Americold Pool 2
A-1B Pari Passu Companion Loan and the Americold Pool 2 A-2A Pari Passu
Companion Loan, to the extent set forth in the related Mortgage Loan documents
and as provided in the Americold Pool 2 Intercreditor Agreement.
"Americold Pool 2 Companion Loan Securities": Any class of
securities backed, wholly or partially, by any Americold Pool 2 Pari Passu
Companion Loan.
"Americold Pool 2 Intercreditor Agreement": The Intercreditor
Agreement, by and among the holders of the Americold Pool 2 Notes, relating to
the relative rights of such holders of the Americold Pool 2 Whole Loan, as the
same may be further amended in accordance with the terms thereof.
"Americold Pool 2 Mortgage Loan": With respect to the Americold Pool
2 Whole Loan, the Mortgage Loan that is included in the Trust (identified as
Mortgage Loan No. 61 on the Mortgage Loan Schedule), which is designated as
promissory note A-2B and is pari passu in right of payment with the Americold
Pool 2 Pari Passu Companion Loans to the extent set forth in the Americold Pool
2 Whole Loan and as provided in the Americold Pool 2 Intercreditor Agreement.
"Americold Pool 2 Mortgaged Property": The Mortgaged Property that
secures the Americold Pool 2 Whole Loan.
"Americold Pool 2 Notes": The Americold Pool 2 Mortgage Loan and the
Americold Pool 2 Pari Passu Companion Loans.
"Americold Pool 2 Pari Passu Companion Loan": Each of the Americold
Pool 2 A-1A Pari Passu Companion Loan, the Americold Pool 2 A-1B Pari Passu
Companion Loan, the Americold Pool 2 A-2A Pari Passu Companion Loan and the
Americold Pool 2 A-2C Pari Passu Companion Loan.
"Americold Pool 2 Pari Passu Companion Loan Holder": Each holder of
a Americold Pool 2 Pari Passu Companion Loan.
"Americold Pool 2 Whole Loan": The Americold Pool 2 Mortgage Loan,
together with the Americold Pool 2 Pari Passu Companion Loans, each of which is
secured by the same Mortgage on the Americold Pool 2 Mortgaged Property.
References herein to the Americold Pool 2 Whole Loan shall be construed to refer
to the aggregate indebtedness under the Americold Pool 2 Notes.
"Anchor Government Assets AB Companion Loan": That certain loan
evidenced by a promissory B note, which is not an asset of the Trust Fund,
secured by the Mortgaged Property securing the Anchor Government Assets Mortgage
Loan.
"Anchor Government Assets Intercreditor Agreement": That certain
Intercreditor Agreement Among Noteholders, dated as of December 29, 2006, by and
between PNC Bank, National Association, as the A Note Holder, and CBA Mezzanine
Capital Finance, LLC, as the B Note Holder. The Anchor Government Assets
Intercreditor Agreement relates to the Anchor Government Assets Whole Loan.
"Anchor Government Assets Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 65.
"Anchor Government Assets Whole Loan": The Anchor Government Assets
Mortgage Loan and the Anchor Government Assets AB Companion Loan.
"Anticipated Repayment Date": With respect to any Mortgage Loan that
is indicated on the Mortgage Loan Schedule as having a Revised Rate, the date
upon which such Mortgage Loan commences accruing interest at such Revised Rate.
"Applicable Procedures": As defined in Section 5.02(b)(i).
"Applicable Servicing Criteria": means with respect to the Trustee,
the Co-Trustee, each Master Servicer, the Special Servicer or any Servicing
Function Participant, the Servicing Criteria applicable to it, as set forth on
Exhibit W attached hereto. For clarification purposes, multiple parties can have
responsibility for the same Applicable Servicing Criteria. With respect to a
Servicing Function Participant engaged by the Trustee, the Co-Trustee, a Master
Servicer or the Special Servicer, the term "Applicable Servicing Criteria" may
refer to a portion of the Applicable Servicing Criteria applicable to such
Master Servicer, the Special Servicer, the Trustee or the Co-Trustee, as the
case may be.
"Applicable State and Local Tax Law": For purposes hereof, the
Applicable State and Local Tax Law shall be (a) the tax laws of the State of New
York; and (b) such other state or local tax laws whose applicability shall have
been brought to the attention of the Trustee by either (i) an Opinion of Counsel
delivered to them, or (ii) written notice from the appropriate taxing authority
as to the applicability of such state or local tax laws.
"Appraisal": An appraisal prepared by an Independent MAI appraiser
with at least five years experience in properties of like kind and in the same
area, prepared in accordance with 12 C.F.R. 225.64, or, in connection with an
Appraisal Reduction, a valuation meeting the requirements of clause (b)(i)(A)(2)
in the definition of Appraisal Reduction.
"Appraisal Reduction": For any Distribution Date and for any
Mortgage Loan (other than the Non-Serviced Mortgage Loans) and any Serviced
Whole Loan as to which an Appraisal Reduction Event has occurred, will be an
amount calculated by the applicable Master Servicer, based upon the appraised
value determined by the Special Servicer, in consultation with the Directing
Certificateholder, as of the first Determination Date that is at least 10
Business Days following the date on which the Special Servicer receives and
delivers to the applicable Master Servicer the related Appraisal, equal to the
excess of (a) the Stated Principal Balance of such Mortgage Loan and any related
Companion Loan or the Stated Principal Balance of the applicable Serviced Whole
Loan, as the case may be, over (b) the excess of (i) the sum of (A) 90% of the
Appraised Value of the related Mortgaged Property as determined (1) by one or
more Appraisals with respect to any Mortgage Loan (together with any other
Mortgage Loan cross-collateralized with such Mortgage Loan) (or any Serviced
Whole Loan) with an outstanding principal balance equal to or in excess of
$2,000,000 (the costs of which shall be paid by the applicable Master Servicer
as a Servicing Advance) or (2) by an internal valuation performed by the Special
Servicer with respect to any Mortgage Loan (together with any other Mortgage
Loan cross-collateralized with such Mortgage Loan) (or any Serviced Whole Loan)
with an outstanding principal balance less than $2,000,000, and (B) all escrows,
letters of credit and reserves in respect of such Mortgage Loan (or a Serviced
Whole Loan) as of the date of calculation over (ii) the sum of, as of the Due
Date occurring in the month of the date of determination, (A) to the extent not
previously advanced by the applicable Master Servicer or the Co-Trustee, all
unpaid interest due on such Mortgage Loan (or a Serviced Whole Loan) at a per
annum rate equal to its Mortgage Rate (and any accrued and unpaid interest on
any related Companion Loan), (B) all unreimbursed Advances and interest thereon
at the Reimbursement Rate in respect of such Mortgage Loan (or a Serviced Whole
Loan) and (C) all currently due and unpaid real estate taxes, assessments,
insurance premiums, ground rents, unpaid Special Servicing Fees and all other
amounts due and unpaid with respect to such Mortgage Loan or Serviced Whole
Loan, as applicable (which taxes, premiums, ground rents and other amounts have
not been the subject of an Advance by the applicable Master Servicer or the
Co-Trustee, as applicable); provided, however, without limiting the Special
Servicer's obligation to order and obtain such Appraisal, if the Special
Servicer has not obtained the Appraisal or valuation, as applicable, referred to
above within 60 days of the Appraisal Reduction Event (or with respect to the
Appraisal Reduction Events set forth in clauses (i) and (vi) of the definition
of Appraisal Reduction Event, within 120 days or 90 days, respectively, after
the initial delinquency for the related Appraisal Reduction Event), the amount
of the Appraisal Reduction shall be deemed to be an amount equal to 25% of the
current Stated Principal Balance of the related Mortgage Loan (or the Serviced
Whole Loan in the case of a Serviced Whole Loan) until such time as such
appraisal or valuation referred to above is received and the Appraisal Reduction
is calculated. Within 60 days after the Appraisal Reduction Event, the Special
Servicer shall order and receive an Appraisal (the cost of which shall be paid
by the applicable Master Servicer as a Servicing Advance); provided, however,
that with respect to an Appraisal Reduction Event as set forth in clause (i) of
the definition of Appraisal Reduction Event, the Special Servicer shall order
and receive such Appraisal within the 120-day period set forth in such clause
(i), which Appraisal shall be delivered by the Special Servicer to the
applicable Master Servicer, the Directing Certificateholder, the Co-Trustee and
the Trustee.
With respect to each Mortgage Loan (other than the Non-Serviced
Mortgage Loans) and with respect to a Serviced Whole Loan and any related
Companion Loan as to which an Appraisal Reduction has occurred (unless such
Mortgage Loan or Serviced Whole Loan has become a Corrected Mortgage Loan (for
such purposes taking into account any amendment or modification of such Mortgage
Loan, any related Companion Loan or any Serviced Whole Loan), the Special
Servicer shall, within thirty (30) days of each anniversary of the related
Appraisal Reduction Event, order an Appraisal (which may be an update of a prior
Appraisal), the cost of which shall be paid by the applicable Master Servicer as
a Servicing Advance or conduct an internal valuation, as applicable and,
promptly following receipt of any such Appraisal or the completion of any such
internal valuation, shall deliver a copy thereof to the applicable Master
Servicer, the Directing Certificateholder, the Co-Trustee and the Trustee and
with respect to each Serviced Whole Loan, the related Controlling Holder. Based
upon such Appraisal or internal valuation of the Special Servicer, the
applicable Master Servicer shall redetermine (in consultation with the Directing
Certificateholder) and report to the Directing Certificateholder, the Special
Servicer, the Co-Trustee and the Trustee the amount of the Appraisal Reduction
with respect to such Mortgage Loan and Companion Loan or Serviced Whole Loan, as
applicable, and such redetermined Appraisal Reduction shall replace the prior
Appraisal Reduction with respect to such Mortgage Loan and Companion Loan or
Serviced Whole Loan, as applicable. The Directing Certificateholder shall have
ten (10) Business Days to review each calculation of an Appraisal Reduction.
Notwithstanding the foregoing, the Special Servicer will not be required to
obtain an Appraisal or conduct an internal valuation, as applicable, with
respect to a Mortgage Loan, any related Companion Loan and any Serviced Whole
Loan which is the subject of an Appraisal Reduction Event to the extent the
Special Servicer has obtained an Appraisal or conducted such a valuation (in
accordance with requirements of this Agreement), as applicable, with respect to
the related Mortgaged Property within the twelve-month period immediately prior
to the occurrence of such Appraisal Reduction Event. Instead, the Special
Servicer may use such prior Appraisal or valuation, as applicable, in
calculating any Appraisal Reduction with respect to such Mortgage Loan, any
related Companion Loan and any Serviced Whole Loan; provided that the Special
Servicer is not aware of any material change to the related Mortgaged Property
having occurred and affecting the validity of such appraisal or valuation, as
applicable, and provides notice to the applicable Master Servicer to use such
previous Appraisal or update.
Any Appraisal Reduction in respect of the Skyline Portfolio Whole
Loan or the Solana Whole Loan shall be calculated by the BACM 2007-1 Master
Servicer in accordance with and pursuant to the terms of the BACM 2007-1 Pooling
Agreement. Any Appraisal Reduction in respect of the Americold Pool 2 Whole Loan
shall be calculated by the JPMCC 2007-CIBC18 Primary Servicer in accordance with
and pursuant to the terms of the JPMCC 2007-CIBC18 Pooling Agreement. Any
Mortgage Loan, any related Companion Loan and any Serviced Whole Loan, as
applicable, previously subject to an Appraisal Reduction which Mortgage Loan,
any related Companion Loan and any Serviced Whole Loan, as applicable, has
become a Corrected Mortgage Loan (for such purposes taking into account any
amendment or modification of such Mortgage Loan, any related Companion Loan and
any Serviced Whole Loan, as applicable), and with respect to which no other
Appraisal Reduction Event has occurred and is continuing, will no longer be
subject to an Appraisal Reduction. Any Appraisal Reduction for a Serviced Whole
Loan shall be allocated in accordance with the applicable Serviced Whole Loan
Intercreditor Agreement to the applicable Serviced Mortgage Loan and the
applicable Companion Loan and, in the absence of provisions allocating such
amounts in the applicable Intercreditor Agreement, in the case of a Serviced
Whole Loan, first to the related subordinate Companion Loan, if any, until
reduced to zero and then to the related Mortgage Loan and each pari passu
Companion Loan(s), pro rata and pari passu among the Mortgage Loan and the
related pari passu Companion Loans in accordance with their respective Stated
Principal Balances.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Mortgage Loan (other than the Non-Serviced
Mortgage Loans) or the related REO Property will be reduced to zero as of the
date on which such Mortgage Loan is paid in full, liquidated, repurchased or
otherwise removed from the Trust Fund.
"Appraisal Reduction Event": With respect to any Mortgage Loan
(other than the Non-Serviced Mortgage Loans) and any related Companion Loan, the
earliest of (i) 120 days after an uncured delinquency (without regard to the
application of any grace period) occurs in respect of such Mortgage Loan and any
related Companion Loan, (ii) the date on which a reduction in the amount of
Monthly Payments on such Mortgage Loan and any related Companion Loan, or a
change in any other material economic term of such Mortgage Loan and any related
Companion Loan (other than an extension of the Maturity Date), becomes effective
as a result of a modification of such Mortgage Loan and any related Companion
Loan by the Special Servicer, (iii) the date on which a receiver has been
appointed, (iv) 60 days after a Mortgagor declares bankruptcy, (v) 60 days after
the date on which an involuntary petition of bankruptcy is filed with respect to
a Mortgagor if not dismissed within such time, (vi) 90 days after an uncured
delinquency occurs in respect of a Balloon Payment with respect to such Mortgage
Loan and any related Companion Loan, except where a refinancing is anticipated
within 120 days after the Maturity Date of the Mortgage Loan or the Mortgage
Loan and any related Companion Loan, in which case 120 days after such uncured
delinquency, and (vii) immediately after such Mortgage Loan and any related
Companion Loan, becomes an REO Loan; provided, however, that an Appraisal
Reduction Event shall not occur at any time when the aggregate Certificate
Balances of all Classes of Certificates (other than the Class A Certificates)
have been reduced to zero. The Special Servicer shall notify the applicable
Master Servicer, or the applicable Master Servicer shall notify the Special
Servicer, as applicable, promptly upon the occurrence of any of the foregoing
events.
"Appraised Value": With respect to any Mortgaged Property (other
than the Skyline Portfolio Mortgaged Property, the Solana Mortgaged Property and
the Americold Pool 2 Mortgaged Property), the appraised value thereof as
determined by an Appraisal of the Mortgaged Property securing the related
Mortgage Loan or any Serviced Whole Loan, as applicable. With respect to the
Skyline Portfolio Mortgaged Property, the Solana Mortgaged Property and the
Americold Pool 2 Mortgaged Property, the appraised value allocable thereto is
determined pursuant to and in accordance with the applicable Non-Serviced
Pooling Agreement.
"ARD Loan": Any Mortgage Loan that provides that if the unamortized
principal balance thereof is not repaid on its Anticipated Repayment Date, such
Mortgage Loan will accrue Excess Interest at the rate specified in the related
Mortgage Note and the Mortgagor is required to apply excess monthly cash flow
generated by the related Mortgaged Property to the repayment of the outstanding
principal balance on such Mortgage Loan.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment": As defined in Section 2.01(c).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar instrument executed by the
Mortgagor, assigning to the mortgagee all of the income, rents and profits
derived from the ownership, operation, leasing or disposition of all or a
portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect to
any Mortgage Loan that is delinquent in respect of its Balloon Payment
(including any REO Loan as to which the Balloon Payment would have been past
due), an amount equal to the sum of (a) the principal portion of the Monthly
Payment that would have been due on such Mortgage Loan on the related Due Date
based on the constant payment required by the related Mortgage Note or the
original amortization schedule thereof (as calculated with interest at the
related Mortgage Rate), if applicable, assuming such Balloon Payment has not
become due, after giving effect to any reduction in the principal balance
thereof occurring in connection with a modification of such Mortgage Loan in
connection with a default or bankruptcy or similar proceedings, and (b) interest
on the Stated Principal Balance of such Mortgage Loan at the applicable Mortgage
Rate (net of interest at the Servicing Fee Rate).
"Authenticating Agent": The Trustee or any agent of the Trustee
appointed to act as Authenticating Agent pursuant to Section 5.01.
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to the sum of (without duplication):
(a) the aggregate amount relating to the Mortgage Loans (and in the
case of the Non-Serviced Mortgage Loans, only to the extent received by
the Trust pursuant to the applicable Intercreditor Agreement) on deposit
in each Certificate Account (exclusive of any Net Investment Earnings
contained therein and exclusive of any amount on deposit in or credited to
any portion of each Certificate Account that is held for the benefit of
the Companion Holders) and the Lower-Tier Distribution Account (without
regard to any payments made to or received from the Swap Counterparty) as
of the close of business on the related P&I Advance Date, exclusive of
(without duplication):
(i) all Monthly Payments paid by the Mortgagors that are due
on a Due Date following the end of the related Due Period, including
interest related to payments received after, but due on or before,
the Cut-off Date;
(ii) all unscheduled Principal Prepayments (together with any
related payments of interest allocable to the period following the
related Due Date for the related Mortgage Loan), Liquidation
Proceeds or Insurance and Condemnation Proceeds, in each case,
received subsequent to the related Determination Date (or, with
respect to voluntary Principal Prepayments for each Mortgage Loan
with a Due Date occurring after the related Determination Date, the
related Due Date);
(iii) all amounts payable or reimbursable to any Person from
each Certificate Account pursuant to clauses (ii) through (xvii),
inclusive, and clauses (xix) and (xx) of Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person from
the Lower-Tier Distribution Account pursuant to clauses (iv) through
(ix), inclusive, of Section 3.05(b);
(v) Excess Interest;
(vi) all Yield Maintenance Charges;
(vii) all amounts deposited in each Certificate Account, the
Lower-Tier Distribution Account and, without duplication, the REO
Account in error; and
(viii) with respect to the Interest Reserve Loans and any
Distribution Date relating to each Interest Accrual Period ending in
(1) each January or (2) any December in a year immediately preceding
a year which is not a leap year (in either case, unless the related
Distribution Date is the final Distribution Date), an amount equal
to one day of interest on the Stated Principal Balance of such
Mortgage Loan as of the Due Date in the month preceding the month in
which such Distribution Date occurs at the related Mortgage Rate to
the extent such amounts are Withheld Amounts; and
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred from the REO Account to each Certificate
Account for such Distribution Date pursuant to Section 3.16(c);
(c) the aggregate amount of any P&I Advances made by the Master
Servicers or the Co-Trustee, as applicable, for such Distribution Date
pursuant to Section 4.03 or 7.05 (net of the related Trustee Fee with
respect to the Mortgage Loans for which such P&I Advances are made);
(d) for the Distribution Date occurring in each March (or February
if the final Distribution Date occurs in such month), the Withheld Amounts
remitted to the Lower-Tier Distribution Account pursuant to Section
3.25(b); and
(e) with respect to the first Distribution Date, the Closing Date
Deposit Amount deposited into the Distribution Account pursuant to Section
2.01(g) that would have accrued for the calendar month prior to such
Distribution Date.
Notwithstanding the investment of funds held in the Certificate Accounts
pursuant to Section 3.06, for purposes of calculating the Available Distribution
Amount, the amounts so invested shall be deemed to remain on deposit in such
account.
"BACM 2007-1 Master Servicer": The "Master Servicer" for the Skyline
Portfolio Whole Loan and the Solana Whole Loan under the BACM 2007-1 Pooling
Agreement, which as of the date hereof is Bank of America, National Association;
provided, however that if at any time the Skyline Portfolio Whole Loan or the
Solana Whole Loan ceases to be serviced under the BACM 2007-1 Pooling Agreement,
then, with respect to such Whole Loan, references herein to the BACM 2007-1
Master Servicer shall be deemed to be references to the successor "Master
Servicer" for such Whole Loan as provided in the related Intercreditor
Agreement.
"BACM 2007-1 Pooling Agreement": The (i) pooling and servicing
agreement dated as of February 1, 2007 among Banc of America Commercial Mortgage
Inc, as depositor, Bank of America, National Association, as master servicer,
LNR Partners, Inc., as special servicer and LaSalle Bank National Association,
as trustee and REMIC administrator, as from time to time amended, supplemented
or modified relating to the issuance of the Banc of America Commercial Mortgage
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-1 or (ii) with
respect to the Skyline Portfolio Whole Loan, any successor pooling and servicing
agreement entered into pursuant to the Skyline Portfolio Intercreditor Agreement
and with respect to the Solana Whole Loan, any successor pooling and servicing
agreement entered into pursuant to the Solana Intercreditor Agreement.
"BACM 2007-1 Special Servicer": The "Special Servicer" for the
Skyline Portfolio Whole Loan and the Solana Whole Loan under the BACM 2007-1
Pooling Agreement, which as of the date hereof is LNR Partners, Inc.; provided,
however that if at any time the Skyline Portfolio Whole Loan or the Solana Whole
Loan ceases to be serviced under the BACM 2007-1 Pooling Agreement, then, with
respect to such Whole Loan, references herein to the BACM 2007-1 Special
Servicer shall be deemed to be references to the successor "Special Servicer"
for such Whole Loan as provided in the related Intercreditor Agreement.
"BACM 2007-1 Trust": The Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-1 trust, which is
administered pursuant to the BACM 2007-1 Pooling Agreement.
"BACM 2007-1 Trustee": The "Trustee" under the BACM 2007-1 Pooling
Agreement, which as of the date hereof is LaSalle Bank National Association.
"Balloon Mortgage Loan": Any Mortgage Loan or Companion Loan that by
its original terms or by virtue of any modification entered into as of the
Closing Date provides for an amortization schedule extending beyond its Maturity
Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Maturity Date of
such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal Prepayment
on any Mortgage Loan and with respect to any Class A-1, Class A-1S, Class A-2,
Class A-2S, Class A-3, Class A-3S, Class A-1A, Class A-M, Class A-MS, Class A-J,
Class A-JS, Class B, Class B-S, Class C, Class C-S, Class D, Class D-S, Class E,
Class E-S, Class F, Class F-S, Class G, Class G-S, Class H and Class H-S
Certificates and the Class A-2SFL and Class A-JFL Regular Interests, a fraction
(a) whose numerator is the greater of (x) zero and (y) the amount by which (i)
the Pass-Through Rate on such Class of Certificates or Regular Interest, as
applicable, exceeds (ii) the discount rate used in accordance with the related
Mortgage Loan documents in calculating the Yield Maintenance Charge with respect
to such Principal Prepayment and (b) whose denominator is the amount by which
(i) the Mortgage Rate on such Mortgage Loan exceeds (ii) the discount rate used
in accordance with the related Mortgage Loan documents in calculating the Yield
Maintenance Charge with respect to such Principal Prepayment. However, under no
circumstances shall the Base Interest Fraction be greater than one. If such
discount rate is greater than the Mortgage Rate on such Mortgage Loan, then the
Base Interest Fraction will equal zero. Each Master Servicer shall provide to
the Trustee the discount rate references above for purposes of calculating the
Base Interest Fraction.
"Bid Allocation": With respect to the applicable Master Servicer and
each Sub-Servicer therefor and the proceeds of any bid pursuant to Section
7.01(c), the amount of such proceeds (net of any expenses incurred in connection
with such bid and the transfer of servicing), multiplied by a fraction equal to
(a) the Servicing Fee Amount for the applicable Master Servicer or such
Sub-Servicer therefor, as the case may be, as of such date of determination,
over (b) the aggregate of the Servicing Fee Amounts for the applicable Master
Servicer and all Sub-Servicers therefor as of such date of determination.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Breach": As defined in Section 2.03(b).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Pittsburgh, Pennsylvania,
Chicago, Illinois, San Francisco, California, or the cities and states in which
the Corporate Trust Office of the Trustee, or the principal place of business of
any Master Servicer, the Trustee, the Co-Trustee or the Special Servicer is
located, are authorized or obligated by law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2007-LDP10, as executed and delivered by the
Certificate Registrar and authenticated and delivered hereunder by the
Authenticating Agent.
"Certificate Account": A segregated custodial account or accounts
created and maintained by each Master Servicer pursuant to Section 3.04(a) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "Midland Loan Services, Inc., as Master Servicer No. 1, on behalf of
Xxxxx Fargo Bank, N.A., as Trustee, in trust for the registered holders of
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series 2007-LDP10, Certificate Account" and
"Wachovia Bank, National Association, as Master Servicer No. 2, on behalf of
Xxxxx Fargo Bank, N.A., as Trustee, in trust for the registered holders of
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series 2007-LDP10, Certificate Account"
respectively. Any such account or accounts shall be an Eligible Account.
Subject to the related Intercreditor Agreement and taking into account that
each Companion Loan is subordinate or pari passu to the related Mortgage Loan
to the extent and as set forth in the related Intercreditor Agreement, the
subaccount described in the second paragraph of Section 3.04(b) that is part
of a Certificate Account shall be for the benefit of the related Companion
Holder, to the extent funds on deposit in such subaccount are attributed to
such Companion Loan and shall not be an asset of the Trust Fund or the
Upper-Tier REMIC, the Middle-Tier REMIC or Lower-Tier REMIC formed hereunder.
"Certificate Balance": With respect to any Class of Certificates
(other than the Residual Certificates, the Class S Certificates and the Class X
Certificates) and the Class A-2SFL and Class A-JFL Regular Interests, (i) on or
prior to the first Distribution Date, an amount equal to the Original
Certificate Balance of such Class as specified in the Preliminary Statement
hereto, and (ii) as of any date of determination after the first Distribution
Date, the Certificate Balance of such Class of Certificates or Regular Interests
on the Distribution Date immediately prior to such date of determination
(determined as adjusted pursuant to Section 1.02(iii)). The Certificate Balance
(including the Original Certificate Balance) of the Class A-2SFL and Class A-JFL
Certificates shall be equal at all times to the Certificate Balance of the Class
A-2SFL Regular Interest and the Class A-JFL Regular Interest, respectively.
"Certificate Deferred Interest": For any Distribution Date with
respect to any Class of Certificates (other than the Class A-2SFL, Class A-JFL,
Class X, Class S and Class R Certificates) and the Class A-2SFL and Class A-JFL
Regular Interests, the amount of Mortgage Deferred Interest allocated to such
Class of Certificates or Regular Interests, as applicable, pursuant to Section
4.06(a).
"Certificate Factor": With respect to any Class of Certificates, as
of any date of determination, a fraction, expressed as a decimal carried to at
least eight (8) places, the numerator of which is the then related Certificate
Balance, and the denominator of which is the related Original Certificate
Balance.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Ownership Certification": As defined in Section 5.06.
"Certificate Register" and "Certificate Registrar": The register
maintained and registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided, however, that
solely for the purposes of giving any consent, approval or waiver pursuant to
this Agreement, any Certificate registered in the name of the applicable Master
Servicer, the Special Servicer, the Trustee, the Co-Trustee, the Depositor or
any Affiliate thereof shall be deemed not to be outstanding, and the Voting
Rights to which it is entitled shall not be taken into account in determining
whether the requisite percentage of Voting Rights necessary to effect any such
consent, approval or waiver has been obtained, if such consent, approval or
waiver sought from such party would in any way increase the compensation of the
Depositor, the applicable Master Servicer, the Special Servicer, the Co-Trustee
or the Trustee or limit the obligations of the Depositor, the applicable Master
Servicer, the Special Servicer, the Co-Trustee or the Trustee, as applicable,
hereunder; provided, however, so long as there is no Event of Default with
respect to the applicable Master Servicer or the Special Servicer, the
applicable Master Servicer, the Special Servicer or such Affiliate of either
shall be entitled to exercise such Voting Rights with respect to any issue which
could reasonably be believed to adversely affect such party's compensation or
increase its obligations or liabilities hereunder; and provided, further,
however, that such restrictions shall not apply to the exercise of the Special
Servicer's rights (or the applicable Master Servicer's rights, if any) or the
rights of any of their Affiliates as a member of the Controlling Class. The
Trustee shall be entitled to request and rely upon a certificate of the
applicable Master Servicer, the Special Servicer or the Depositor in determining
whether a Certificate is registered in the name of an Affiliate of such Person.
All references herein to "Holders" or "Certificateholders" shall reflect the
rights of Certificate Owners as they may indirectly exercise such rights through
the Depository and the Depository Participants, except as otherwise specified
herein; provided, however, that the parties hereto shall be required to
recognize as a "Holder" or "Certificateholder" only the Person in whose name a
Certificate is registered in the Certificate Register.
"Certification Parties": As defined in Section 11.06.
"Certifying Person": As defined in Section 11.06.
"Certifying Servicer": As defined in Section 11.09.
"Class": With respect to any Certificates or Uncertificated
Lower-Tier Interests, all of the Certificates bearing the same alphabetical
(and, if applicable, numerical) Class designation and each designated
Uncertificated Lower-Tier Interest.
"Class A Certificate": Any Class A-1, Class A-1A, Class A-2 and
Class A-3 Certificate.
"Class A-S Certificate": Any Class A-1S, Class A-2S, Class A-2SFL
and Class A-3S Certificate.
"Class A-1 Certificate": A Certificate designated as "Class A-1" on
the face thereof, in the form of Exhibit A-1 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to 5.1220%.
"Class A-1A Certificate": A Certificate designated as "Class A-1A"
on the face thereof, in the form of Exhibit A-8 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1A Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to 5.4390%.
"Class A-1S Certificate": A Certificate designated as "Class A-1S"
on the face thereof, in the form of Exhibit A-2 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1S Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to 4.9300%.
"Class A-2 Certificate": A Certificate designated as "Class A-2" on
the face thereof, in the form of Exhibit A-3 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-2 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to 5.340%.
"Class A-2S Certificate": A Certificate designated as "Class A-2S"
on the face thereof, in the form of Exhibit A-4 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-2S Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to 5.3050%.
"Class A-2SFL Available Funds": With respect to any Distribution
Date, the sum of (i) the total amount of all principal and/or interest
distributions on or in respect of the Class A-2SFL Regular Interest with respect
to such Distribution Date and (ii) the amounts, if any, received from the Swap
Counterparty pursuant to the Swap Contract for such Distribution Date, less
(iii) all amounts (exclusive of any Yield Maintenance Charges allocated in
respect of the Class A-2SFL Regular Interest) required to be paid to the Swap
Counterparty pursuant to the Swap Contract for such Distribution Date.
"Class A-2SFL Certificate": A Certificate designated as "Class
A-2SFL" on the face thereof, in the form of Exhibit A-5 hereto, and evidencing
an undivided beneficial interest in the portion of the Grantor Trust consisting
of the Class A-2SFL Regular Interest, the Class A-2SFL Floating Rate Account,
the related Swap Contract and the proceeds thereof.
"Class A-2SFL Distribution Conversion": With respect to any
Distribution Date (i) during the continuation of a Class A-2SFL Swap Default
while the Trustee is pursuing remedies under the related Swap Contract pursuant
to Section 3.31 or (ii) following the termination of the related Swap Contract,
the conversion of distributions to the Class A-2SFL Certificates from
distributions based, in part, on interest payments from the related Swap
Counterparty under the related Swap Contract to distributions based solely on
distributions in respect of the Class A-2SFL Regular Interest, as specified in
Section 4.01(k).
"Class A-2SFL Fixed Swap Payment": With respect to any Distribution
Date, the amount required to be paid to the related Swap Counterparty by the
Trust under the related Swap Contract.
"Class A-2SFL Floating Rate Account": The trust account or accounts
created and maintained as a separate account or accounts (or as a subaccount of
the Distribution Account) by the Trustee pursuant to Section 3.04(b), which
shall be entitled "Xxxxx Fargo Bank, N.A., as Trustee, in trust for the
registered Holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-LDP10 Commercial Mortgage Pass Through Certificates, Series 2007-LDP10
Class A-2SFL Certificates, Class A-2SFL Floating Rate Account," and which must
be an Eligible Account (or a subaccount of an Eligible Account). The Class
A-2SFL Floating Rate Account shall not be an asset of either the Lower-Tier
REMIC, the Middle-Tier REMIC or the Upper-Tier REMIC formed hereunder.
"Class A-2SFL Floating Swap Payment": With respect to any
Distribution Date, the amount required to be paid to the Trust by the related
Swap Counterparty under the related Swap Contract.
"Class A-2SFL Interest Distribution Amount": With respect to any
Distribution Date, the sum of (a) interest accrued during the related Interest
Accrual Period at the Class A-2SFL Pass-Through Rate applicable for such
Distribution Date on the Certificate Balance outstanding immediately prior to
such Distribution Date of such Class and (b) to the extent not previously paid,
amounts of interest distributable on the Class A-2SFL Certificates for all
previous Distribution Dates.
"Class A-2SFL Net Swap Payment": With respect to the related
Interest Accrual Period, the excess, if any of (i) the Class A-2SFL Fixed Swap
Payment, over (ii) the Class A-2SFL Floating Swap Payment.
"Class A-2SFL Pass-Through Rate": With respect to any Distribution
Date for which a Class A-2SFL Distribution Conversion has not occurred and is
not continuing, a per annum rate equal to LIBOR plus 0.1300%, and with respect
to any Distribution Date on which a Class A-2SFL Distribution Conversion has
occurred and is continuing, a per annum rate equal to the Class A-2SFL Regular
Interest Pass-Through Rate.
"Class A-2SFL Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal allocated pursuant
to Section 4.01 in respect of the Class A-2SFL Regular Interest on such
Distribution Date.
"Class A-2SFL Regular Interest": The uncertificated interest
corresponding to the Class A-2SFL Certificates and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-2SFL Regular Interest Distribution Amount": With respect to
any Distribution Date, the aggregate distributions on the Class A-2SFL Regular
Interest pursuant to this Agreement, including, but not limited to, any payments
of interest, principal, Yield Maintenance Charges and/or reimbursements.
"Class A-2SFL Regular Interest Pass-Through Rate": With respect to
any Distribution Date, a per annum rate equal to 5.1870%.
"Class A-2SFL Swap Default": (a) Any failure on the part of the
related Swap Counterparty to (i) make a required payment under the related Swap
Contract or (ii) either post acceptable collateral or find an acceptable
replacement Swap Counterparty after a Rating Agency Trigger Event has occurred
as required by Part 1, paragraph (k) of the Schedule to the Master Agreement in
the related Swap Contract or (b) an early termination date is designated under
the related Swap Contract in accordance with its terms.
"Class A-3 Certificate": A Certificate designated as "Class A-3" on
the face thereof, in the form of Exhibit A-6 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-3 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to 5.4200%.
"Class A-3S Certificate": A Certificate designated as "Class A-3S"
on the face thereof, in the form of Exhibit A-7 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-3S Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to 5.3170%.
"Class A-J Certificate": A Certificate designated as "Class A-J" on
the face thereof, in the form of Exhibit A-12 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-J Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the lesser of (i) 5.5030% and (ii) the Group R
WAC Rate.
"Class A-JFL Available Funds": With respect to any Distribution
Date, the sum of (i) the total amount of all principal and/or interest
distributions on or in respect of the Class A-JFL Regular Interest with respect
to such Distribution Date and (ii) the amounts, if any, received from the
related Swap Counterparty pursuant to the related Swap Contract for such
Distribution Date, less (iii) all amounts (exclusive of any Yield Maintenance
Charges allocated in respect of the Class A-JFL Regular Interest) required to be
paid to the related Swap Counterparty pursuant to the related Swap Contract for
such Distribution Date.
"Class A-JFL Certificate": A Certificate designated as "Class A-JFL"
on the face thereof, in the form of Exhibit A-13 hereto, and evidencing an
undivided beneficial interest in the portion of the Grantor Trust consisting of
the Class A-JFL Regular Interest, the Class A-JFL Floating Rate Account, the
related Swap Contract and the proceeds thereof.
"Class A-JFL Distribution Conversion": With respect to any
Distribution Date (i) during the continuation of a Class A-JFL Swap Default
while the Trustee is pursuing remedies under the related Swap Contract pursuant
to Section 3.31 or (ii) following the termination of the related Swap Contract,
the conversion of distributions to the Class A-JFL Certificates from
distributions based, in part, on interest payments from the related Swap
Counterparty under the related Swap Contract to distributions based solely on
distributions in respect of the Class A-JFL Regular Interest, as specified in
Section 4.01(k).
"Class A-JFL Fixed Swap Payment": With respect to any Distribution
Date, the amount required to be paid to the related Swap Counterparty by the
Trust under the related Swap Contract.
"Class A-JFL Floating Swap Payment": With respect to any
Distribution Date, the amount required to be paid to the Trust by the related
Swap Counterparty under the related Swap Contract.
"Class A-JFL Floating Rate Account": The trust account or accounts
created and maintained as a separate account or accounts (or as a subaccount of
the Distribution Account) by the Trustee pursuant to Section 3.04(b), which
shall be entitled "Xxxxx Fargo Bank, N.A., as Trustee, in trust for the
registered Holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-LDP10 Commercial Mortgage Pass Through Certificates, Series 2007-LDP10
Class A-JFL Certificates, Class A-JFL Floating Rate Account," and which must be
an Eligible Account (or a subaccount of an Eligible Account). The Floating Rate
Account shall not be an asset of either the Lower-Tier REMIC, Middle-Tier REMIC
or the Upper-Tier REMIC formed hereunder.
"Class A-JFL Interest Distribution Amount": With respect to any
Distribution Date, the sum of (a) interest accrued during the related Interest
Accrual Period at the Class A-JFL Pass-Through Rate applicable for such
Distribution Date on the Certificate Balance outstanding immediately prior to
such Distribution Date of such Class and (b) to the extent not previously paid,
amounts of interest distributable on the Class A-JFL Certificates for all
previous Distribution Dates.
"Class A-JFL Net Swap Payment": With respect to the related Interest
Accrual Period, the excess, if any of (i) the Class A-JFL Fixed Swap Payment,
over (ii) the Class A-JFL Floating Swap Payment.
"Class A-JFL Pass-Through Rate": With respect to any Distribution
Date for which a Class A-JFL Distribution Conversion has not occurred and is not
continuing, a per annum rate equal to LIBOR plus 0.2600%, and with respect to
any Distribution Date on which a Class A-JFL Distribution Conversion has
occurred and is continuing, a per annum rate equal to the Class A-JFL Regular
Interest Pass-Through Rate.
"Class A-JFL Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal allocated pursuant
to Section 4.01 in respect of the Class A-JFL Regular Interest on such
Distribution Date.
"Class A-JFL Regular Interest": The uncertificated interest
corresponding to the Class A-JFL Certificates and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-JFL Regular Interest Distribution Amount": With respect to
any Distribution Date, the aggregate distributions on the Class A-JFL Regular
Interest pursuant to this Agreement, including, but not limited to, any payments
of interest, principal, Yield Maintenance Charges and/or reimbursements.
"Class A-JFL Regular Interest Pass-Through Rate": With respect to
any Distribution Date, a per annum rate equal to the lesser of (i) 5.4380% and
(ii) the Group R WAC Rate.
"Class A-JFL Swap Default": (a) Any failure on the part of the
related Swap Counterparty to (i) make a required payment under the related Swap
Contract or (ii) either post acceptable collateral or find an acceptable
replacement Swap Counterparty after a Rating Agency Trigger Event has occurred
as required by Part 1, paragraph (k) of the Schedule to the Master Agreement in
the related Swap Contract or (b) an early termination date is designated under
the related Swap Contract in accordance with its terms.
"Class A-JS Certificate": A Certificate designated as "Class A-JS"
on the face thereof, in the form of Exhibit A-14 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-JS Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the lesser of (i) 5.3950% and (ii) the Group S
WAC.
"Class A-M Certificate": A Certificate designated as "Class A-M" on
the face thereof, in the form of Exhibit A-10 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-M Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the lesser of (i) 5.4640% and (ii) the Group R
WAC Rate.
"Class A-MS Certificate": A Certificate designated as "Class A-MS"
on the face thereof, in the form of Exhibit A-11 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-MS Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the lesser of (i) 5.3420% and (ii) the Group S
WAC Rate.
"Class B Certificate": A Certificate designated as "Class B" on the
face thereof, in the form of Exhibit A-18 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class B Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 5.5820% and (ii) the Group R WAC
Rate.
"Class B-S Certificate": A Certificate designated as "Class B-S" on
the face thereof, in the form of Exhibit A-15 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class B-S Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the lesser of (i) 5.4370% and (ii) the Group S
WAC Rate.
"Class C Certificate": A Certificate designated as "Class C" on the
face thereof, in the form of Exhibit A-19 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class C Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 5.6120% and (ii) the Group R WAC
Rate.
"Class C-S Certificate": A Certificate designated as "Class C-S" on
the face thereof, in the form of Exhibit A-16 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class C-S Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the lesser of (i) 5.4660% and (ii) the Group S
WAC Rate.
"Class D Certificate": A Certificate designated as "Class D" on the
face thereof, in the form of Exhibit A-20 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class D Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Group R WAC Rate minus 0.1590%.
"Class D-S Certificate": A Certificate designated as "Class D-S" on
the face thereof, in the form of Exhibit A-17 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class D-S Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the lesser of (i) 5.5160% and (ii) the Group S
WAC Rate.
"Class E Certificate": A Certificate designated as "Class E" on the
face thereof, in the form of Exhibit A-21 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class E Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Group R WAC Rate minus 0.0610%.
"Class E-S Certificate": A Certificate designated as "Class E-S" on
the face thereof, in the form of Exhibit A-22 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class E-S Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Group S WAC Rate minus 0.1940%.
"Class F Certificate": A Certificate designated as "Class F" on the
face thereof, in the form of Exhibit A-23 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class F Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Group R WAC Rate.
"Class F-S Certificate": A Certificate designated as "Class F-S" on
the face thereof, in the form of Exhibit A-24 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class F-S Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Group S WAC Rate.
"Class G Certificate": A Certificate designated as "Class G" on the
face thereof, in the form of Exhibit A-25 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class G Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Group R WAC Rate%.
"Class G-S Certificate": A Certificate designated as "Class G-S" on
the face thereof, in the form of Exhibit A-26 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class G-S Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Group S WAC Rate.
"Class H Certificate": A Certificate designated as "Class H" on the
face thereof, in the form of Exhibit A-27 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class H Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Group R WAC Rate.
"Class H-S Certificate": A Certificate designated as "Class H" on
the face thereof, in the form of Exhibit A-28 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class H-S Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Group S WAC Rate.
"Class J Certificate": A Certificate designated as "Class J" on the
face thereof, in the form of Exhibit A-29 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class J Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 5.0810% and (ii) the Pool WAC Rate.
"Class K Certificate": A Certificate designated as "Class K" on the
face thereof, in the form of Exhibit A-30 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class K Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.0810% and (ii) the Pool WAC Rate.
"Class L Certificate": A Certificate designated as "Class L" on the
face thereof, in the form of Exhibit A-31 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class L Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.0810% and (ii) the Pool WAC Rate.
"Class LR Certificate": A Certificate designated as "Class LR" on
the face thereof, in the form of Exhibit A-39 hereto, evidencing the sole class
of "residual interests" in the Lower-Tier REMIC for purposes of the REMIC
Provisions.
"Class L-RB Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Middle-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class L-RQ Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Middle-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class L-SB Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Middle-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class L-SQ Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Middle-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class M Certificate": A Certificate designated as "Class M" on the
face thereof, in the form of Exhibit A-32 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class M Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.0810% and (ii) the Pool WAC Rate.
"Class MA-1 Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MA-1A Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MA-1S Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MA-2 Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MA-2S Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MA-2SFL Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MA-3 Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MA-3S Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MA-J Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MA-JFL Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MA-JS Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MA-M Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MA-MS Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MB Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MB-S Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MC Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MC-S Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MD Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MD-S Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class ME Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class ME-S Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MF Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MF-S Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MG Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MG-S Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MH Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MH-S Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MJ Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MK Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class ML Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MM Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MN Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MNR Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MP Uncertificated Interest": An uncertificated regular
interest in the Middle-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Middle-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MR Certificate": A Certificate designated as "Class MR" on
the face thereof, in the form of Exhibit A-38 hereto, evidencing the sole class
of "residual interests" in the Middle-Tier REMIC for purposes of the REMIC
Provisions
"Class N Certificate": A Certificate designated as "Class N" on the
face thereof, in the form of Exhibit A-33 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class N Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.0810% and (ii) the Pool WAC Rate.
"Class NR Certificate": A Certificate designated as "Class NR" on
the face thereof, in the form of Exhibit A-35 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class NR Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.0810% and (ii) the Pool WAC Rate.
"Class P Certificate": A Certificate designated as "Class P" on the
face thereof, in the form of Exhibit A-34 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class P Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.0810% and (ii) the Pool WAC Rate.
"Class R Certificate": A Certificate designated as "Class R" on the
face thereof in the form of Exhibit A-37 hereto, and evidencing the sole class
of "residual interest" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class S Certificate": A Certificate designated as "Class S" on the
face thereof, in the form of Exhibit A-36 hereto, and evidencing an undivided
beneficial interest in the portion of the Grantor Trust consisting of the Excess
Interest, the Excess Interest Distribution Account and the proceeds thereof.
"Class Unpaid Interest Shortfall": As to any Distribution Date and
any Class of Certificates (other than the Class A-2SFL and Class A-JFL
Certificates) or the Class A-2SFL or Class A-JFL Regular Interests, the excess,
if any, of (a) the sum of (i) the Distributable Certificate Interest in respect
of such Class of Certificates or Regular Interest, as applicable, for the
immediately preceding Distribution Date and (ii) any outstanding Class Unpaid
Interest Shortfall payable to such Class of Certificates or Regular Interest, as
applicable, on such preceding Distribution Date over (b) the aggregate amount in
respect of interest actually distributed to such Class of Certificates or
Regular Interest, as applicable, on such immediately preceding Distribution
Date. The Class Unpaid Interest Shortfall with respect to any Class of
Certificates and the Class A-2SFL and Class A-JFL Regular Interests as of the
initial Distribution Date is zero. No interest shall accrue on Class Unpaid
Interest Shortfalls.
"Class X Certificate": Any one of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in the Upper Tier REMIC for
purposes of the REMIC Provisions.
"Class X Notional Amount": As of any date of determination, the sum
of the then Component Notional Amounts of all the Components.
"Class X Pass-Through Rate": With respect to any Distribution Date,
the weighted average of the respective Class X Strip Rates for the respective
Components for such Distribution Date (weighted on the basis of the respective
balances of those Components immediately prior to the Distribution Date).
"Class X Strip Rate": With respect to any Class of the Components
for any Distribution Date, a rate per annum calculated as follows:
(a) if such Component consists of the Certificate Balance of any
Class of Group R Certificates, then the applicable Class X Strip Rate
shall equal the excess, if any, of (a) the Group R WAC Rate for such
Distribution Date, over (b) the Pass-Through Rate in effect for such
Distribution Date for the applicable Class of Group R Certificates;
(b) if such Component consists of the Certificate Balance of any
Class of Group S Certificates, then the applicable Class X Strip Rate
shall equal the excess, if any, of (a) the Group S WAC Rate for such
Distribution Date, over (b) the Pass-Through Rate in effect for such
Distribution Date for the applicable Class of Group S Certificates; and
(c) if such Component consists of the Certificate Balance of any
Class of the Class J, Class K, Class L, Class M, Class N, Class P or Class
NR Certificates, then the applicable Class X Strip Rate shall equal the
excess, if any, of (a) the Pool WAC Rate for such Distribution Date, over
(b) the Pass-Through Rate in effect for such Distribution Date for the
applicable Class of the Class J, Class K, Class L, Class M, Class N, Class
P or Class NR Certificates.
"Class X-R Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to (A) prior to the reduction of the Class
H-S Certificate Balance to zero and reimbursement in full of all Collateral
Support Deficits previously allocated to the Class H-S Certificates pursuant to
Section 4.04 hereof, (1) the Interest Distribution Amount for the Class X
Certificates for such Distribution Date multiplied by (2) a fraction whose
numerator is the Stated Principal Balance of all Mortgage Loans in Loan Group R
as of such Distribution Date and whose denominator is the Stated Principal
Balance of all Mortgage Loans in the Trust and (B) after the reduction of the
Class H-S Certificate Balance to zero and reimbursement of all Collateral
Support Deficits allocated to the Class H-S Certificates in full, the Interest
Distribution Amount for the Class X Certificates for that Distribution Date.
"Class X-S Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to (A) prior to the reduction of the Class H
Certificate Balance to zero and reimbursement in full of all Collateral Support
Deficits previously allocated to the Class H Certificates pursuant to Section
4.04 hereof, (1) the Interest Distribution Amount for the Class X Certificates
for such Distribution Date multiplied by (2) a fraction whose numerator is the
Stated Principal Balance of all Mortgage Loans in Loan Group S as of such
Distribution Date and whose denominator is the Stated Principal Balance of all
Mortgage Loans in the Trust and (B) after the reduction of the Class H
Certificate Balance to zero and reimbursement in full of all Collateral Support
Deficits previously allocated to the Class H Certificates pursuant to Section
4.04 hereof, the Interest Distribution Amount for the Class X Certificates for
that Distribution Date.
"Clearstream": Clearstream Banking, societe anonyme or any
successor thereto.
"Closing Date": March 29, 2007.
"Closing Date Deposit Amount": $911,881.10, representing the
aggregate amount of interest that would have accrued at the related Mortgage
Rates on the applicable Mortgage Loans commencing March 1, 2007 for those
Mortgage Loans that do not have a Due Date in April 2007.
"CMSA": The Commercial Mortgage Securities Association, or any
successor organization reasonably acceptable to the Trustee, the Master
Servicers and the Directing Certificateholder.
"CMSA Advance Recovery Report": The report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Advance Recovery Report" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally as is reasonably
acceptable to the applicable Master Servicer and the Special Servicer.
"CMSA Bond Level File": The data file in the "CMSA Bond Level File"
format substantially in the form of and containing the information called for
therein, or such other form for the presentation of such information as may be
approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Bond Level
File" available as of the Closing Date on the CMSA website, as is reasonably
acceptable to the Trustee.
"CMSA Collateral Summary File": The data file in the "CMSA
Collateral Summary File" format substantially in the form of and containing the
information called for therein, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Collateral Summary File" available as of the Closing Date on the CMSA
website, is reasonably acceptable to the Trustee and the Master Servicers.
"CMSA Comparative Financial Status Report": The monthly report in
"Comparative Financial Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "Comparative Financial Status Report" available as
of the Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicers or the Special Servicer, as applicable.
"CMSA Delinquent Loan Status Report": The monthly report in the
"Delinquent Loan Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for the form of the "Delinquent Loan Status Report" available as of the
Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicers or the Special Servicer, as applicable.
"CMSA Financial File": The data file in the "CMSA Financial File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Financial File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicers or the Special Servicer, as
applicable.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": The monthly report in the "Historical Loan Modification and Corrected
Mortgage Loan Report" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Historical Loan Modification and Corrected Mortgage Loan
Report" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Master Servicers or the Special Servicer, as applicable.
"CMSA Investor Reporting Package (IRP)": Collectively:
(a) the following electronic data files: (i) CMSA Loan Setup File,
(ii) CMSA Loan Periodic Update File, (iii) CMSA Property File, (iv) CMSA Bond
Level File, (v) CMSA Financial File, (vi) CMSA Collateral Summary File and (vii)
CMSA Special Servicer Loan File; and
(b) the following supplemental reports: (i) CMSA Delinquent Loan
Status Report, (ii) CMSA Historical Loan Modification & Corrected Mortgage Loan
Report, (iii) CMSA REO Status Report, (iv) CMSA Operating Statement Analysis
Report, (v) CMSA Comparative Financial Status Report, (vi) CMSA Servicer Watch
List, (vii) CMSA NOI Adjustment Worksheet, (viii) CMSA Loan Level Reserve/LOC
Report, (ix) CMSA Servicer Realized Loss Report, (x) CMSA Advance Recovery
Report and (xi) CMSA Total Loan Report.
The CMSA IRP shall be substantially in the form of, and containing
the information called for in, the downloadable forms of the "CMSA IRP"
available as of the Closing Date on the CMSA website, or such other form for the
presentation of such information and containing such additional information or
reports as may from time to time be approved by the CMSA for commercial mortgage
backed securities transaction generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA IRP" available as of the Closing Date on the CMSA website, as is
reasonably acceptable to the Master Servicers, the Special Servicer and the
Trustee. For the purposes of the production of the CMSA Comparative Financial
Status Report by any Master Servicer or the Special Servicer if any such report
that is required to state information for any period prior to the Cut off Date,
any Master Servicer or the Special Servicer, as the case may be, may
conclusively rely (without independent verification), absent manifest error, on
information provided to it by the Mortgage Loan Sellers or by the related
Mortgagor or (x) in the case of such a report produced by any Master Servicer,
by the Special Servicer (if other than any Master Servicer or an Affiliate
thereof) and (y) in the case of such a report produced by the Special Servicer,
by any Master Servicer (if other than the Special Servicer or an Affiliate
thereof).
"CMSA Loan Level Reserve/LOC Report": The monthly report in the
"CMSA Loan Level Reserve/LOC Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "Loan Level Reserve/LOC Report" available as of
the Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicers.
"CMSA Loan Periodic Update File": The data file in the "CMSA Loan
Periodic Update File" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA Loan Periodic Update File" available as of the Closing
Date on the CMSA website, as is reasonably acceptable to the Master Servicers
and the Trustee.
"CMSA Loan Setup File": The data file in the "CMSA Loan Setup File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Loan Setup File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicers and the Trustee.
"CMSA NOI Adjustment Worksheet": The worksheet in the "NOI
Adjustment Worksheet" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the applicable form of the "CMSA NOI Adjustment Worksheet" available as of the
Closing Date on the CMSA website, is reasonably acceptable to the applicable
Master Servicer or the Special Servicer, as the case may be.
"CMSA Operating Statement Analysis Report": The monthly report in
the "Operating Statement Analysis Report" format substantially in the form of
and containing the information called for therein for the Mortgage Loans, or
such other form for the presentation of such information as may be approved from
time to time by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the applicable form of the "CMSA Operating
Statement Analysis Report" available as of the Closing Date on the CMSA website,
is reasonably acceptable to the applicable Master Servicer or the Special
Servicer, as the case may be.
"CMSA Property File": The data file in the "CMSA Property File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Property File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the applicable Master Servicer or the Special Servicer,
as the case may be.
"CMSA Servicer Realized Loss Report": The report in the "Servicer
Realized Loss Report" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA Realized Loss Report" available as of the Closing Date on
the CMSA website, is reasonably acceptable to the applicable Master Servicer or
the Special Servicer, as applicable.
"CMSA Reconciliation of Funds Report": The monthly report in the
"Reconciliation of Funds" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Reconciliation of Funds" available as of the Closing Date on
the CMSA website, is reasonably acceptable to the Trustee.
"CMSA REO Status Report": The report in the "REO Status Report"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA REO Status Report" available as of the Closing Date on the CMSA website,
is reasonably acceptable to the applicable Master Servicer or the Special
Servicer, as the case may be.
"CMSA Servicer Watch List": As of each Determination Date a report,
including and identifying each Non Specially Serviced Mortgage Loan satisfying
the "CMSA Portfolio Review Guidelines" approved from time to time by the CMSA in
the "CSMA Servicer Watch List" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form (including other portfolio review guidelines) for the presentation of
such information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Servicer Watch List" available as of the Closing Date on the CMSA website,
is reasonably acceptable to the applicable Master Servicer.
"CMSA Special Servicer Loan File": The data file in the "CMSA
Special Servicer Loan File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, or such other form
for the presentation of such information as may be approved from time to time by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "CMSA Special Servicer Loan File" available as of the Closing
Date on the CMSA website, is reasonably acceptable to the Special Servicer.
"CMSA Total Loan Report": A monthly report substantially in the form
of, and containing the information called for in, the downloadable form of the
Total Loan Report" available as of the Closing Date on the CMSA Website, or in
such other form for the presentation of such information and containing such
additional information as may from time to time be adopted by the CMSA for
commercial mortgage-backed securities transactions and is reasonably acceptable
to each applicable Master Servicer.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, and applicable final or temporary regulations of the U.S. Department of
the Treasury issued pursuant thereto.
"Collateral Support Deficit": As defined in Section 4.04.
"College Green Mortgage Loan": That certain Mortgage Loan identified
on the Mortgage Loan Schedule as loan number 185.
"Commission": The Securities and Exchange Commission.
"Companion Distribution Account": With respect to each Companion
Loan (other than the Skyline Portfolio Pari Passu Companion Loans, the Solana
Pari Passu Companion Loan and the Americold Pool 2 Pari Passu Companion Loans),
the separate account or accounts created and maintained by the applicable
Companion Paying Agents pursuant to Section 3.04(b) and held on behalf of the
Companion Holders, which shall be entitled "Midland Loan Services, Inc., as
Companion Paying Agent for the Companion Holders of the Companion Loans,
relating to the X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2007-LDP10 Commercial Mortgage Pass-Through Certificates, Series 2007-LDP10" or
"Wachovia Bank, National Association, as Companion Paying Agent for the
Companion Holders of the Companion Loans, relating to the X.X. Xxxxxx Chase
Commercial Mortgage Securities Trust 2007-LDP10 Commercial Mortgage Pass-Through
Certificates, Series 2007-LDP10", as applicable. The Companion Distribution
Account shall not be an asset of the Trust Fund, the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC, but instead shall be held by the
applicable Companion Paying Agent on behalf of the related Companion Holders.
Any such account shall be an Eligible Account. Notwithstanding the foregoing, if
the related Master Servicer and the related Companion Paying Agent are the same
entity, the Companion Distribution Account maintained by such Companion Paying
Agent may be the subaccount referenced in the second paragraph of Section
3.04(b).
"Companion Holder": Each of the holders of the Companion Loans.
"Companion Loan": As defined in the Preliminary Statement.
"Companion Loan Securities": The 000 Xxxxxxxxx Xxxxxx Companion Loan
Securities, the Skyline Portfolio Companion Loan Securities, the Solana
Companion Loan Securities and the Americold Pool 2 Companion Loan Securities.
"Companion Paying Agent": The applicable Master Servicer in its role
as Companion Paying Agent appointed pursuant to Section 3.29.
"Companion Register": The register maintained by each Companion
Paying Agent pursuant to Section 3.30.
"Compensating Interest Payments": An amount as of any Distribution
Date equal to the lesser of (i) the aggregate amount of Prepayment Interest
Shortfalls incurred in connection with voluntary principal prepayments received
in respect of the Mortgage Loans (other than the Specially Serviced Mortgage
Loans) serviced by the applicable Master Servicer and (ii) the aggregate of (A)
that portion of the applicable Master Servicer's Servicing Fees for such
Distribution Date that is, in the case of each and every Mortgage Loan and REO
Loan for which such Servicing Fees are being paid for such Due Period,
calculated at 0.01% (1.0 basis points) per annum, and (B) all Prepayment
Interest Excesses with respect to the applicable Master Servicer received in
respect of the Mortgage Loans for the related Distribution Date and (C) to the
extent earned on Principal Prepayments, Net Investment Earnings received by the
applicable Master Servicer during such Due Period with respect to the Mortgage
Loans and related Companion Loans subject to the prepayment. However, if a
Prepayment Interest Shortfall occurs as a result of the applicable Master
Servicer's allowing the related Mortgagor to deviate from the terms of the
related Mortgage Loan documents regarding Principal Prepayments (other than (X)
subsequent to a default under the related Mortgage Loan documents (with the
consent of the Special Servicer), (Y) pursuant to applicable law or a court
order, or (Z) at the request or with the consent of the Directing
Certificateholder), then, for purposes of calculating the Compensating Interest
Payment for the related Distribution Date, the amount in clause (ii) above shall
be the aggregate of (1) all Servicing Fees with respect to the applicable Master
Servicer for such Due Period, (2) all Prepayment Interest Excesses with respect
to the applicable Master Servicer and (3) to the extent earned solely on
Principal Prepayments, Net Investment Earnings received by the applicable Master
Servicer during such Due Period with respect to the Mortgage Loan subject to
such Principal Prepayment. In no event will the rights of the Certificateholders
to offset the aggregate Prepayment Interest Shortfalls be cumulative.
"Component": Each of Component XA-1, Component XA-1S, Component
XX-0X, Xxxxxxxxx XX-0, Component XA-2S, Component XA-2SFL, Component XA-3,
Component XA-3S, Component XA-M, Component XA-MS, Component XA-J, Component
XA-JFL, Component XA-JS, Component XB, Component XB-S, Component XC, Component
XC-S, Component XD, Component XD-S, Component XE, Component XE-S, Component XF,
Component XF-S, Component XG, Component XG-S, Component XH, Component XH-S,
Component XJ, Component XK, Component XL, Component XM, Component XN, Component
XP and Component XNR.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then Middle Tier Principal Amount
of its Related Uncertificated Middle Tier Interest.
"Component XA-1": One of the 34 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Middle-Tier Principal Amount of the Class MA-1 Uncertificated Interest as of any
date of determination.
"Component XA-1A": One of the 34 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Middle-Tier Principal Amount of the Class MA-1A Uncertificated Interest as of
any date of determination.
"Component XA-1S": One of the 34 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Middle-Tier Principal Amount of the Class MA-1S Uncertificated Interest as of
any date of determination.
"Component XA-2": One of the 34 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Middle-Tier Principal Amount of the Class MA-2 Uncertificated Interest as of any
date of determination.
"Component XA-2S": One of the 34 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Middle-Tier Principal Amount of the Class MA-2S Uncertificated Interest as of
any date of determination.
"Component XA-2SFL": One of the 34 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Middle-Tier Principal Amount of the Class MA-2SFL Uncertificated Interest as of
any date of determination.
"Component XA-3": One of the 34 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Middle-Tier Principal Amount of the Class MA-3 Uncertificated Interest as of any
date of determination.
"Component XA-3S": One of the 34 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Middle-Tier Principal Amount of the Class MA-3S Uncertificated Interest as of
any date of determination.
"Component XA-J": One of the 34 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Middle-Tier Principal Amount of the Class MA-J Uncertificated Interest as of any
date of determination.
"Component XA-JFL": One of the 34 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Middle-Tier Principal Amount of the Class MA-JFL Uncertificated Interest as of
any date of determination.
"Component XA-JS": One of the 34 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Middle-Tier Principal Amount of the Class MA-JS Uncertificated Interest as of
any date of determination.
"Component XA-M": One of the 34 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Middle-Tier Principal Amount of the Class MA-M Uncertificated Interest as of any
date of determination.
"Component XA-MS": One of the 34 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Middle-Tier Principal Amount of the Class MA-MS Uncertificated Interest as of
any date of determination.
"Component XB": One of the 34 components of the Class X Certificates
having a Component Notional Amount equal to the then current Middle-Tier
Principal Amount of the Class MB Uncertificated Interest as of any date of
determination.
"Component XB-S": One of the 34 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Middle-Tier Principal Amount of the Class MB-S Uncertificated Interest as of any
date of determination.
"Component XC": One of the 34 components of the Class X Certificates
having a Component Notional Amount equal to the then current Middle-Tier
Principal Amount of the Class MC Uncertificated Interest as of any date of
determination.
"Component XC-S": One of the 34 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Middle-Tier Principal Amount of the Class MC-S Uncertificated Interest as of any
date of determination.
"Component XD": One of the 34 components of the Class X Certificates
having a Component Notional Amount equal to the then current Middle-Tier
Principal Amount of the Class MD Uncertificated Interest as of any date of
determination.
"Component XD-S": One of the 34 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Middle-Tier Principal Amount of the Class MD-S Uncertificated Interest as of any
date of determination.
"Component XE": One of the 34 components of the Class X Certificates
having a Component Notional Amount equal to the then current Middle-Tier
Principal Amount of the Class ME Uncertificated Interest as of any date of
determination.
"Component XE-S": One of the 34 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Middle-Tier Principal Amount of the Class ME-S Uncertificated Interest as of any
date of determination.
"Component XF": One of the 34 components of the Class X Certificates
having a Component Notional Amount equal to the then current Middle-Tier
Principal Amount of the Class MF Uncertificated Interest as of any date of
determination.
"Component XF-S": One of the 34 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Middle-Tier Principal Amount of the Class MF-S Uncertificated Interest as of any
date of determination.
"Component XG": One of the 34 components of the Class X Certificates
having a Component Notional Amount equal to the then current Middle-Tier
Principal Amount of the Class MG Uncertificated Interest as of any date of
determination.
"Component XG-S": One of the 34 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Middle-Tier Principal Amount of the Class MG-S Uncertificated Interest as of any
date of determination.
"Component XH": One of the 34 components of the Class X Certificates
having a Component Notional Amount equal to the then current Middle-Tier
Principal Amount of the Class MH Uncertificated Interest as of any date of
determination.
"Component XH-S": One of the 34 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Middle-Tier Principal Amount of the Class MH-S Uncertificated Interest as of any
date of determination.
"Component XJ": One of the 34 components of the Class X Certificates
having a Component Notional Amount equal to the then current Middle-Tier
Principal Amount of the Class MJ Uncertificated Interest as of any date of
determination.
"Component XK": One of the 34 components of the Class X Certificates
having a Component Notional Amount equal to the then current Middle-Tier
Principal Amount of the Class MK Uncertificated Interest as of any date of
determination.
"Component XL": One of the 34 components of the Class X Certificates
having a Component Notional Amount equal to the then current Middle-Tier
Principal Amount of the Class ML Uncertificated Interest as of any date of
determination.
"Component XM": One of the 34 components of the Class X Certificates
having a Component Notional Amount equal to the then current Middle-Tier
Principal Amount of the Class MM Uncertificated Interest as of any date of
determination.
"Component XN": One of the 34 components of the Class X Certificates
having a Component Notional Amount equal to the then current Middle-Tier
Principal Amount of the Class MN Uncertificated Interest as of any date of
determination..
"Component XNR": One of the 34 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Middle-Tier Principal Amount of the Class MNR Uncertificated Interest as of any
date of determination.
"Component XP": One of the 34 components of the Class X Certificates
having a Component Notional Amount equal to the then current Middle-Tier
Principal Amount of the Class MP Uncertificated Interest as of any date of
determination.
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates (other than the Class X Certificates)
then outstanding that has a then aggregate Certificate Balance at least equal to
25% of the Original Certificate Balance of such Class of Certificates. As of the
Closing Date, the Controlling Class will be the Class NR Certificates. In
determining the most subordinate Class of Regular Certificates for the purpose
of determining the Controlling Class, such determination shall be made without
consideration of Appraisal Reductions, if any, allocated to any Class of Regular
Certificates. For purposes of determining the Controlling Class, Class H and
Class H-S will be treated as one Class, Class G and Class G-S will be treated as
one Class, Class F and Class F-S will be treated as one Class, Class E and Class
E-S will be treated as one Class, Class D and Class D-S will be treated as one
Class, Class C and Class C-S will be treated as one Class, Class B and Class B-S
will be treated as one class, Class A-J, Class A-JFL and Class A-JS will be
treated as one Class, Class A-M and Class A-MS will be treated as one Class and
the Class A Certificates and Class A-S Certificates, collectively will be
treated as one Class.
"Controlling Class Certificateholder's Option Period": As defined
in Section 3.18(a)(ii).
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified by
the Certificate Registrar to the Trustee from time to time by such Holder (or
Certificate Owner).
"Controlling Class Option Holder": As defined in Section 3.18(a)(i).
"Corporate Trust Office": The principal corporate trust offices
of the Trustee at which at any particular time its corporate trust business
with respect to this Agreement shall be administered, which office at the
date of the execution of this Agreement is located at (i) for all purposes
other than Certificate Transfers and the maintenance of the Certificate
Register, Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000-0000, Attention: Corporate Trust Services--X.X. Xxxxxx 2007-LDP10, and
(ii) with respect to Certificate Transfers, Xxxxx Xxxxxx xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Corporate Trust
Services--X.X. Xxxxxx 2007-LDP10.
"Corrected Mortgage Loan": Any Specially Serviced Mortgage Loan that
has become current and remained current for three consecutive Monthly Payments
(for such purposes taking into account any modification or amendment of such
Mortgage Loan or Companion Loan, whether by a consensual modification or in
connection with a bankruptcy, insolvency or similar proceeding involving the
Mortgagor), and (provided that no additional default is foreseeable in the
reasonable judgment of the Special Servicer and no other event or circumstance
exists that causes such Mortgage Loan or Companion Loan to otherwise constitute
a Specially Serviced Mortgage Loan) the servicing of which the Special Servicer
has returned to the applicable Master Servicer pursuant to Section 3.21(a).
"Co-Trustee": LaSalle Bank National Association, a national banking
association organized under the laws of the United States, or its successor in
interest, in its capacity as co-trustee or any successor Co-Trustee appointed as
herein provided.
"Co-Trustee Fee": The portion of the Trustee Fee payable to the
Co-Trustee in an amount agreed to between the Trustee and the Co-Trustee.
"Crossed Group": With respect to any Mortgage Loan, such Mortgage
Loan and all other Mortgage Loans that are cross-collateralized and
cross-defaulted with such Mortgage Loan.
"Crossed Loan": A Mortgage Loan that is cross-collateralized and
cross-defaulted with one or more other Mortgage Loans.
"Crossed Loan Repurchase Criteria": (i) The weighted average Debt
Service Coverage Ratio for all remaining related Crossed Loans for the most
recent twelve month period covered by an annual operating statement for the
related Mortgaged Properties preceding the repurchase or substitution shall not
be less than the greater of (a) the Debt Service Coverage Ratio for all such
related Crossed Loans, including the affected Crossed Loan, for the most recent
twelve month period covered by an annual operating statement for the related
Mortgaged Properties preceding the repurchase or substitution, and (b) 1.25x,
(ii) the weighted average LTV Ratio for all remaining related Crossed Loans
determined at the time of repurchase or substitution based upon an Appraisal
obtained by the Special Servicer at the expense of the related Mortgage Loan
Seller shall not be greater than the lesser of (a) the weighted average LTV
Ratio for all such related Crossed Loans, including the affected Crossed Loan,
determined at the time of repurchase or substitution based upon an Appraisal
obtained by the Special Servicer at the expense of the related Mortgage Loan
Seller and (b) 75%, (iii) the Mortgage Loan Seller, at its expense, shall have
furnished the Trustee with an Opinion of Counsel that any modification relating
to the repurchase or substitution of a Crossed Loan shall not cause an Adverse
REMIC Event, (iv) the related Mortgage Loan Seller causes the affected Crossed
Loan to become not cross-collateralized and cross-defaulted with the remaining
related Crossed Loans prior to such repurchase or substitution or otherwise
forbears from exercising enforcement rights against the Primary Collateral of
any Crossed Loan remaining in the Trust Fund and (v) the Directing
Certificateholder shall have consented to the repurchase or substitution of the
affected Crossed Loan, which consent shall not be unreasonably withheld.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, either of the Mortgage Loan Sellers or an
Affiliate of any of them. The Trustee shall be the initial Custodian.
"Cut-off Date": With respect to each Mortgage Loan, the related Due
Date of that Mortgage Loan in March 2007, or, with respect to each of those
Mortgage Loans that have their first Due Date after March 2007, the origination
date of that Mortgage Loan.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan
or Companion Loan, the outstanding principal balance of such Mortgage Loan or
Companion Loan, as the case may be, as of the Cut-off Date, after application of
all payments of principal due on or before such date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan for
any twelve month period covered by an annual operating statement for the related
Mortgaged Property, the ratio of (i) Net Operating Income produced by the
related Mortgaged Property during such period to (ii) the aggregate amount of
Monthly Payments (other than any Balloon Payment) due under such Mortgage Loan
during such period, provided that with respect to the Mortgage Loans indicated
on Schedule 2, which pay interest only for a specified period of time set forth
in the related Mortgage Loan documents and then pay principal and interest, the
related Monthly Payment will be calculated (for purposes of this definition
only) to include interest and principal (based on the remaining amortization
term indicated in the Mortgage Loan Schedule).
"Default Interest": With respect to any Mortgage Loan or Companion
Loan, all interest accrued in respect of such Mortgage Loan or Companion Loan
during such Due Period provided for in the related Mortgage Note or Mortgage as
a result of a default (exclusive of late payment charges) that is in excess of
interest at the related Mortgage Rate accrued on the unpaid principal balance of
such Mortgage Loan or Companion Loan outstanding from time to time.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is delinquent at
least sixty days in respect of its Monthly Payments or more than thirty days (or
sixty days with respect to the circumstances described in clause (ii) of the
definition of Servicing Transfer Event) delinquent in respect of its Balloon
Payment, if any, in either case such delinquency to be determined without giving
effect to any grace period permitted by the related Mortgage or Mortgage Note
and without regard to any acceleration of payments under the related Mortgage
and Mortgage Note or (ii) as to which the applicable Master Servicer or Special
Servicer has, by written notice to the related Mortgagor, accelerated the
maturity of the indebtedness evidenced by the related Mortgage Note. For the
avoidance of doubt, a defaulted Companion Loan does not constitute a "Defaulted
Mortgage Loan".
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Accounts": As defined in Section 3.20(l).
"Defect": As defined in Section 2.02(f).
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": Any Certificate in definitive, fully
registered form without interest coupons.
"Denomination": As defined in Section 5.01(a).
"Depositor": X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., a Delaware corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to any Distribution Date, the
fourth Business Day preceding such Distribution Date.
"Determination Information": As defined in Section 3.18(a)(i).
"Directing Certificateholder": The Controlling Class
Certificateholder (or a representative thereof identified to the Master
Servicers, the Special Servicer and the Trustee) selected by more than 50% of
the Controlling Class Certificateholders, by Certificate Balance, as certified
by the Certificate Registrar from time to time; provided, however, that (i)
absent such selection, or (ii) until a Directing Certificateholder is so
selected or (iii) upon receipt of a notice from a majority of the Controlling
Class Certificateholders, by Certificate Balance, that a Directing
Certificateholder is no longer designated, the Controlling Class
Certificateholder that owns the largest aggregate Certificate Balance of the
Controlling Class will be the Directing Certificateholder which will initially
be JER Investors Trust, Inc. Notwithstanding the foregoing, with respect to the
Overland Park Trade Center Whole Loan, any references to the Directing
Certificateholder in this Agreement shall be deemed to be references to the
Overland Park Trade Center Controlling Holder, which shall be entitled to take
all actions and receive all notices in connection with the Overland Park Trade
Center Whole Loan pursuant to the procedures set forth in the Overland Park
Trade Center Intercreditor Agreement.
"Directly Operate": With respect to any REO Property (except with
respect to the Skyline Portfolio Mortgaged Property, the Solana Mortgaged
Property and the Americold Pool 2 Mortgaged Property), the furnishing or
rendering of services to the tenants thereof, that are not customarily provided
to tenants in connection with the rental of space "for occupancy only" within
the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers, the use of such REO Property in a trade or business conducted
by the Trust Fund or on behalf of a Companion Holder or the performance of any
construction work on the REO Property (other than the completion of a building
or improvement, where more than 10% of the construction of such building or
improvement was completed before default became imminent), other than through an
Independent Contractor; provided, however, that an REO Property shall not be
considered to be Directly Operated solely because the Trustee (or the Special
Servicer on behalf of the Trustee) establishes rental terms, chooses tenants,
enters into or renews leases, deals with taxes and insurance or makes decisions
as to repairs or capital expenditures with respect to such REO Property or takes
other actions consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any possession of the United States or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and a
majority of its board of directors is not selected by such governmental unit),
(ii) a foreign government, any international organization or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Trustee based upon an Opinion
of Counsel as provided to the Trustee (at no expense to the Trustee) that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to
fail to qualify as a REMIC or any Person having an Ownership Interest in any
Class of Certificates (other than such Person) to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Residual Certificate to such Person.
The terms "United States," "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any
Distribution Date, as to any Class of Regular Certificates (other than the Class
A-2SFL and Class A-JFL Certificates) and the Class A-2SFL and Class A-JFL
Regular Interests, the Accrued Certificate Interest in respect of such Class of
Regular Certificates or the Regular Interests, as applicable, for such
Distribution Date, reduced (to not less than zero) by any allocations to such
Class of Certificates (other than in the case of the Class X Certificates) or
such Regular Interests, as applicable, of (i) the product of (a) any Net
Aggregate Prepayment Interest Shortfall for such Distribution Date, multiplied
by (b) a fraction, expressed as a decimal, the numerator of which is the Accrued
Certificate Interest in respect of such Class of Certificates or such Regular
Interests, as applicable, for such Distribution Date, and the denominator of
which is the aggregate Accrued Certificate Interest in respect of all the
Classes of Regular Certificates (other than the Class A-2SFL and Class A-JFL
Certificates and the Class X Certificates) and the Class A-2SFL and Class A-JFL
Regular Interests for such Distribution Date, and (ii) any Certificate Deferred
Interest for such Distribution Date allocated to such Class of Certificates or
such Regular Interests, as applicable, pursuant to Section 4.06(a).
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account, the Middle-Tier Distribution Account, the Lower-Tier Distribution
Account, the Excess Interest Distribution Account and the Floating Rate
Accounts, all of which may be subaccounts of a single Eligible Account.
"Distribution Date": The 15th day of each month, or, if such 15th
day is not a Business Day, on the next succeeding Business Day, beginning in
April 2007.
"DTC": As defined in Section 5.03(d).
"Due Date": With respect to (i) any Mortgage Loan or Companion Loan,
on or prior to its Maturity Date, the day of the month set forth in the related
Mortgage Note (or such other Mortgage Loan document, as applicable) on which
each Monthly Payment thereon is scheduled to be first due, (ii) any Mortgage
Loan or Companion Loan after the Maturity Date therefor, the day of the month
set forth in the related Mortgage Note on which each Monthly Payment on such
Mortgage Loan or Companion Loan had been scheduled to be first due, and (iii)
any REO Loan, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment on the related Mortgage Loan or Companion Loan had
been scheduled to be first due.
"Due Period": With respect to any Distribution Date and any Mortgage
Loan or Companion Loan, the period commencing on the day immediately succeeding
the Due Date for such Mortgage Loan or Companion Loan occurring in the month
preceding the month in which such Distribution Date occurs and ending on and
including the Due Date for such Mortgage Loan or Companion Loan occurring in the
month in which such Distribution Date occurs; provided, that the first Due
Period with respect to any Mortgage Loan or Companion Loan with its first Due
Date in April 2007 or May 2007 will commence on the day immediately following
the Cut-off Date of such Mortgage Loan or Companion Loan. Notwithstanding the
foregoing, in the event that the last day of a Due Period (or applicable grace
period) is not a Business Day, any Monthly Payments received with respect to the
Mortgage Loans or Companion Loan relating to such Due Period on the Business Day
immediately following such day shall be deemed to have been received during such
Due Period and not during any other Due Period.
"Eligible Account": Either (i) a segregated account or accounts
maintained with a federal or state chartered depository institution or trust
company with a combined capital surplus of not less than $50,000,000, (A)(x) the
long-term unsecured debt obligations of which are rated at least "Aa3" by
Moody's, if the deposits are to be held in such account for more than 30 days
and (y) the short term debt obligations of which have a short-term rating of not
less than "P-1" from Moody's, if the deposits are to be held in such account for
30 days or less, (B)(x) the long-term unsecured debt obligations of which are
rated at least "A+" by S&P (or "A-" by S&P so long as the short-term deposit or
short-term unsecured debt obligations of such depository institution or trust
company are rated no less than "A-1" by S&P), if the deposits are to be held in
such account for more than 30 days and (y) the short-term debt obligations of
which have a short-term rating of not less than "A-1" by S&P, if the deposits
are to be held in such account for 30 days or less, (C)(x) the long-term
unsecured obligations of which are rated at least "AA-" by Fitch and (y) the
short-term obligations of which have a short-term rating of not less than "F1"
by Fitch, if the deposits are to be held in such account for 30 days or less and
(D) an account or accounts maintained with PNC Bank so long as PNC Bank's long
term deposit debt rating shall be at least "A" from S&P, "A" from Fitch, and
"A1" from Moody's (if the deposits are to be held in the account for more than
30 days) or PNC Bank's short term deposit or short term unsecured debt rating
shall be at least "A-1" from S&P, "F1" from Fitch or "P-1" from Moody's (if the
deposits are to be held in the account for 30 days or less), (ii) a segregated
trust account or accounts maintained with the corporate trust department of a
federal or state chartered depository institution or trust company with a
combined capital surplus of not less than $50,000,000 that, in either case, has
corporate trust powers, acting in its fiduciary capacity, provided that any
state chartered depository institution or trust company is subject to regulation
regarding fiduciary funds substantially similar to 12 C.F.R. ss. 9.10(b) or
(iii) such other account or accounts with respect to (x) each of the Rating
Agencies shall have confirmed in writing that the then current rating assigned
to any of the Certificates or any Companion Loan Securities will not be
qualified, downgraded or withdrawn by reason thereof, (y) the Directing
Certificateholder shall have reasonably approved and (z) the use of which would
not, in and of itself, be inconsistent with the requirements of FASB 140 or any
interpretations with respect thereto applicable to such accounts. Eligible
Accounts may bear interest. No Eligible Account shall be evidenced by a
certificate of deposit, passbook or other similar instrument.
"Eligible Investor": Either (i) a Qualified Institutional Buyer that
is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A or (ii) an Institutional Accredited
Investor.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of, the American Society of Testing Materials Standard
Sections 1527 99 or any successor thereto published by the American Society of
Testing Materials.
"Environmental Indemnity Agreement": With respect to any Mortgage
Loan, any agreement between the Mortgagor (or a guarantor thereof) and the
originator of such Mortgage Loan relating to the Mortgagor's obligation to
remediate or monitor or indemnify for any environmental problems relating to the
related Mortgaged Property.
"Environmental Laws" shall mean any present or future federal, state
or local law, statute, regulation or ordinance, any judicial or administrative
order or judgment thereunder, pertaining to health, industrial hygiene,
hazardous substances or the environment, including, but not limited to, each of
the following, as enacted as of the date hereof or as hereafter amended: the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. xx.xx. 9601 et seq.; the Resource Conservation and Recovery Act of 1976,
42 U.S.C. xx.xx. 6901 et seq.; the Toxic Substance Control Act, 15 U.S.C. xx.xx.
2601 et seq.; the Water Pollution Control Act (also known as the Clean Water
Act, 22 U.S.C. xx.xx. 1251 et seq.), the Clean Air Act, 42 U.S.C. xx.xx. 7401 et
seq. and the Hazardous Materials Transportation Act, 49 U.S.C. xx.xx. 1801 et
seq.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Prohibited Holder": As defined in Section 5.02(c)(i)(A).
"ERISA Restricted Certificate": Any Class J, Class K, Class L, Class
M, Class N, Class P or Class NR Certificate; provided that any such Certificate:
(a) will cease to be considered an ERISA Restricted Certificate and (b) will
cease to be subject to the transfer restrictions contained in Section 5.02(c)
if, as of the date of a proposed transfer of such Certificate, either (i) it is
rated in one of the four highest generic ratings categories by a Rating Agency
or (ii) relevant provisions of ERISA would permit the transfer of such
Certificate to a Plan.
"Escrow Payment": Any payment received by any Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground lease
rents and similar items in respect of the related Mortgaged Property, including
amounts for deposit to any reserve account.
"Euroclear": Euroclear Bank societe anonyme or any successor
thereto.
"Event of Default": One or more of the events described in
Section 7.01(a).
"Excess Interest": With respect to each of the Mortgage Loans
indicated on the Mortgage Loan Schedule as having a Revised Rate, interest
accrued on such Mortgage Loan after the Anticipated Repayment Date allocable to
the Excess Rate, including all interest accrued thereon. The Excess Interest
shall not be an asset of any of the Lower-Tier REMIC, the Middle-Tier REMIC or
the Upper-Tier REMIC formed hereunder.
"Excess Interest Distribution Account": The trust account or
accounts created and maintained as a separate account or accounts (or as a
subaccount of the Distribution Account) by the Trustee pursuant to Section
3.04(c), which shall be entitled "Xxxxx Fargo Bank, N.A., as Trustee, in trust
for the registered Holders of X.X. Xxxxxx Chase Commercial Mortgage Securities
Trust 2007-LDP10 Commercial Mortgage Pass-Through Certificates, Series
2007-LDP10, Excess Interest Distribution Account," and which must be an Eligible
Account (or a subaccount of an Eligible Account). The Excess Interest
Distribution Account shall not be an asset of any of the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC formed hereunder.
"Excess Rate": With respect to each of the Mortgage Loans indicated
on the Mortgage Loan Schedule as having a Revised Rate, the excess of (i) the
applicable Revised Rate over (ii) the applicable Mortgage Rate, each as set
forth in the Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended from
time to time and the rules and regulations of the Commission thereunder.
"Eurohypo": Eurohypo AG, New York Branch, a German banking
corporation, or its successor in interest.
"Xxxxxx Xxx": Federal National Mortgage Association or any
successor thereto.
"FASB 140": The Financial Accounting Standards Board's Statement
No. 140, entitled "Accounting for Transfers and Servicing of Financial Assets
and Extinguishment of Liabilities", issued in September 2002.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"Final Recovery Determination": A reasonable determination by the
Special Servicer, in consultation with the Directing Certificateholder, with
respect to any Defaulted Mortgage Loan or Corrected Mortgage Loan (and, if
applicable, any defaulted Companion Loan) or REO Property (other than a Mortgage
Loan or REO Property, as the case may be, that was purchased by any of the
Mortgage Loan Sellers pursuant to Section 6 of the applicable Mortgage Loan
Purchase Agreement, the Controlling Class Option Holder, the applicable
Companion Holder or the Special Servicer pursuant to Section 3.18(b), any
mezzanine lender pursuant to Section 3.18(e) or the applicable Master Servicer,
Special Servicer, the Holders of the Controlling Class, or the Holders of the
Class LR Certificates pursuant to Section 9.01) that there has been a recovery
of all Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenue
and other payments or recoveries that, in the Special Servicer's judgment, which
judgment was exercised without regard to any obligation of the Special Servicer
to make payments from its own funds pursuant to Section 3.07(b), will ultimately
be recoverable. The Directing Certificateholder shall have ten (10) Business
Days to review and approve each such recovery determination by the Special
Servicer; provided, however, that if the Directing Certificateholder fails to
approve or disapprove any recovery determination within ten (10) Business Days
of receipt of the initial recovery determination, such approval shall be deemed
given.
"FIRREA": The Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, as it may be amended from time to time.
"Fitch": Fitch, Inc., and its successors in interest. If neither
Fitch nor any successor remains in existence, "Fitch" shall be deemed to refer
to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, the Master Servicers, the Directing Certificateholder
and the Special Servicer, and specific ratings of Fitch herein referenced shall
be deemed to refer to the equivalent ratings of the party so designated.
"Floating Rate Account": Either the Class A-2SFL Floating Rate
Account or the Class A-JFL Floating Rate Account, individually or collectively
as the context may require.
"Form 8-K Disclosure Information": As defined in Section 11.07.
"Xxxxxxx Mac": Federal Home Loan Mortgage Corporation or any
successor thereto.
"Gain-on-Sale Proceeds": With respect to any Mortgage Loan or
Companion Loan, as applicable, the excess of (i) Liquidation Proceeds of the
Mortgage Loan or Companion Loan or related REO Property net of any related
Liquidation Expenses, Unliquidated Advances, unreimbursed Advances, Liquidation
Fees, unreimbursed interest on Advances, unpaid Servicing Fees, and unpaid
Special Servicing Fees and additional Trust Fund expenses over (ii) the Purchase
Price for such Mortgage Loan or Companion Loan, as applicable, on the date on
which such Liquidation Proceeds were received. For the avoidance of doubt,
Gain-on-Sale Proceeds allocable to a Companion Loan shall not be assets of the
Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC or the Upper-Tier REMIC.
"Gain-on-Sale Reserve Account": A custodial account or accounts (or
subaccount of the Distribution Account) created and maintained by the Trustee,
pursuant to Section 3.04(d) on behalf of the Trustee in trust for the
Certificateholders, which shall be entitled "Xxxxx Fargo Bank, N.A., as Trustee,
in trust for the registered Holders of X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Trust 2007-LDP10 Commercial Mortgage Pass-Through Certificates,
Series 2007-LDP10, Gain-on-Sale Reserve Account." Any such account shall be an
Eligible Account or a subaccount of an Eligible Account.
"Grantor Trust": A segregated asset pool within the Trust Fund
consisting of (i) the Excess Interest and amounts held from time to time in the
Excess Interest Distribution Account, beneficial ownership of which is
represented by the Class S Certificates and (ii) the Class A-2SFL Regular
Interest, the Class A-JFL Regular Interest, the Swap Contracts, the Floating
Rate Accounts and the proceeds thereof, beneficial ownership of which is
represented by the Class A-2SFL and Class A-JFL Certificates.
"Ground Lease": The ground lease pursuant to which any Mortgagor
holds a leasehold interest in the related Mortgaged Property and any estoppels
or other agreements executed and delivered by the ground lessor in favor of the
lender under the Mortgage Loan.
"Group A Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as having been sold by AIG, SOME II, Eurohypo, JPMorgan
(other than the Los Angeles Media Tech Center Mortgage Loan) or PNC Bank,
together with any other Mortgage Loan that is substituted in replacement thereof
pursuant to or as contemplated by the related Mortgage Loan Purchase Agreement.
"Group B Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as having been sold by NCCI or UBS and the Los Angeles
Media Tech Center Mortgage Loan, together with any other Mortgage Loan that is
substituted in replacement thereof pursuant to or as contemplated by the related
Mortgage Loan Purchase Agreement.
"Group R Available Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) that portion of the
Available Distribution Amount for that Distribution Date attributable to funds
collected or advanced with respect to the Mortgage Loans in Loan Group R and (b)
after the reduction of the Class H-S Certificate Principal Balance to zero and
reimbursement of all Collateral Support Deficits allocated to the Class H-S
Certificates in full, that portion of the Available Distribution Amount for that
Distribution Date attributable to funds collected or advanced with respect to
the Mortgage Loans in Loan Group S remaining after all distributions on that
Distribution Date to the Class H-S Certificates.
"Group R Certificates": Any Class A-1, Class A-2, Class A-3, Class
A-1A, Class A-M, Class A-J, Class A-JFL, Class B, Class C, Class D, Class E,
Class F, Class G and Class H Certificates.
"Group R-1 Certificates": Any Class A-1, Class A-2, Class A-3, Class
A-M, Class A-J, Class A-JFL, Class B, Class C, Class D, Class E, Class F, Class
G and Class H Certificates.
"Group R-2 Certificates": The Class A-1A Certificates.
"Group R Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to either Loan Group R-1 or Loan Group R-2.
"Group R-1 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group R-1.
"Group R-1 Principal Distribution Amount": With respect to any
Distribution Date and any Class of Group R-1 Certificates (other than Class
A-JFL Certificates) and the Class A-JFL Regular Interest, an amount equal to the
sum of (a) the Group R-1 Principal Shortfall for that Distribution Date, (b) the
Scheduled Principal Distribution Amount for Loan Group R-1 for that Distribution
Date, and (c) the Unscheduled Principal Distribution Amount for Loan Group R-1
for that Distribution Date; provided, that the Group R-1 Principal Distribution
Amount for any Distribution Date will be reduced by the amount of any
reimbursements of (i) Nonrecoverable Advances, plus interest on such
Nonrecoverable Advances, that are paid or reimbursed from principal collections
on the Mortgage Loans in Loan Group R-1 in a period during which such principal
collections would have otherwise been included in the Group R-1 Principal
Distribution Amount for that Distribution Date, (ii) Workout-Delayed
Reimbursement Amounts that are paid or reimbursed from principal collections on
the Mortgage Loans in Loan Group R-1 in a period during which such principal
collections would have otherwise been included in the Group R-1 Principal
Distribution Amount for that Distribution Date and (iii) following the
reimbursements described in clauses (i) and (ii), the excess, if any of (A) the
total amount of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts, plus interest on such Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts, that would have been paid or reimbursed from principal
collections on the Mortgage Loans in Loan Group R-2 pursuant to clauses (i) and
(ii) of the definition of Group R-2 Principal Distribution Amount had the
aggregate amount available for distribution of principal with respect to Loan
Group R-2 been sufficient to make such reimbursements in full, over (B) the
aggregate amount available for distribution of principal with respect to Loan
Group R-2 for that Distribution Date (provided, further, (I) that in the case of
clauses (i) and (ii) above, if any of such amounts reimbursed from principal
collections on the Mortgage Loans in Loan Group R-1 are subsequently recovered
on the related mortgage loan, subject to the application of any recovery to
increase the Group R-2 Principal Distribution Amount as required under clause
(II) of the definition of Group R-2 Principal Distribution Amount, such recovery
will be applied to increase the Group R-1 Principal Distribution Amount for the
Distribution Date related to the period in which such recovery occurs; and (II)
that in the case of clause (iii) above, if any of such amounts reimbursed from
principal collections on the Mortgage Loans in Loan Group R-2 are subsequently
recovered on the related mortgage loan, such recovery will first be applied to
increase the Group R-1 Principal Distribution Amount up to such amounts and then
to increase the Group R-2 Principal Distribution Amount) and (d) after the
reduction of the Class H-S Certificate Principal Balance to zero and
reimbursement of all Collateral Support Deficits allocated to the Class H-S
Certificates in full, that portion of the Group S Principal Distribution Amount
for that Distribution Date remaining after all distributions on that
Distribution Date to the Class H-S Certificates.
"Group R-2 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group R-2.
"Group R-2 Principal Distribution Amount": With respect to any
Distribution Date and any Class of Group R-2 Certificates, an amount equal to
the sum of (a) the Group R-2 Principal Shortfall for that Distribution Date, (b)
the Scheduled Principal Distribution Amount for Loan Group R-2 for that
Distribution Date and (c) the Unscheduled Principal Distribution Amount for Loan
Group R-2 for that Distribution Date; provided, that the Group R-2 Principal
Distribution Amount for any Distribution Date will be reduced by the amount of
any reimbursements of (i) Nonrecoverable Advances, plus interest on such
Nonrecoverable Advances, that are paid or reimbursed from principal collections
on the Mortgage Loans in Loan Group R-2 in a period during which such principal
collections would have otherwise been included in the Group R-2 Principal
Distribution Amount for that Distribution Date, (ii) Workout-Delayed
Reimbursement Amounts that are paid or reimbursed from principal collections on
the Mortgage Loans in Loan Group R-2 in a period during which such principal
collections would have otherwise been included in the Group R-2 Principal
Distribution Amount for that Distribution Date and (iii) following the
reimbursements described in clauses (i) and (ii), the excess, if any of (A) the
total amount of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts, plus interest on such Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts, that would have been paid or reimbursed from principal
collections on the Mortgage Loans in Loan Group R-1 as described in clauses (i)
and (ii) of the definition of Group R-1 Principal Distribution Amount had the
aggregate amount available for distribution of principal with respect to Loan
Group S been sufficient to make such reimbursements in full, over (B) the
aggregate amount available for distribution of principal with respect to Loan
Group R-1 for that Distribution Date (provided, further, (I) that in the case of
clauses (i) and (ii) above, if any of such amounts reimbursed from principal
collections on the Mortgage Loans in Loan Group R-2 are subsequently recovered
on the related mortgage loan, subject to the application of any recovery to
increase the Group R-1 Principal Distribution Amount as required under clause
(II) of the definition of Group R-1 Principal Distribution Amount, such recovery
will be applied to increase the Group R-2 Principal Distribution Amount for the
Distribution Date related to the period in which such recovery occurs; and (II)
that in the case of clause (iii) above, if any of such amounts reimbursed from
principal collections on the Mortgage Loans in Loan Group R-1 are subsequently
recovered on the related mortgage loan, such recovery will first be applied to
increase the Group R-2 Principal Distribution Amount up to such amounts and then
to increase the Group R-1 Principal Distribution Amount).
"Group R Principal Distribution Amount": With respect to any
Distribution Date and any Class of Group R Certificates (other than Class A-JFL
Certificates) and the Class A-JFL Regular Interest, an amount equal to the sum
of (a) the Group R Principal Shortfall for that Distribution Date, (b) the
Scheduled Principal Distribution Amount for Loan Group R for that Distribution
Date and (c) the Unscheduled Principal Distribution Amount for Loan Group R for
that Distribution Date; provided, that the Group R Principal Distribution Amount
for any Distribution Date will be reduced by the amount of any reimbursements of
(i) Nonrecoverable Advances, plus interest on such Nonrecoverable Advances, that
are paid or reimbursed from principal collections on the Mortgage Loans in Loan
Group R in a period during which such principal collections would have otherwise
been included in the Group R Principal Distribution Amount for that Distribution
Date, (ii) Workout-Delayed Reimbursement Amounts that are paid or reimbursed
from principal collections on the Mortgage Loans in Loan Group R in a period
during which such principal collections would have otherwise been included in
the Group R Principal Distribution Amount for that Distribution Date and (iii)
following the reimbursements described in clauses (i) and (ii), the excess, if
any of (A) the total amount of Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts, plus interest on such Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts, that would have been paid or reimbursed
from principal collections on the Mortgage Loans in Loan Group S as described in
clauses (i) and (ii) of the definition of Group S Principal Distribution Amount
had the aggregate amount available for distribution of principal with respect to
Loan Group S been sufficient to make such reimbursements in full, over (B) the
aggregate amount available for distribution of principal with respect to Loan
Group S for that Distribution Date (provided, further, (I) that in the case of
clauses (i) and (ii) above, if any of such amounts reimbursed from principal
collections on the Mortgage Loans in Loan Group R are subsequently recovered on
the related mortgage loan, subject to the application of any recovery to
increase the Group S Principal Distribution Amount as required under clause (II)
of the definition of "Group S Principal Distribution Amount", such recovery will
be applied to increase the Group R Principal Distribution Amount for the
Distribution Date related to the period in which such recovery occurs; and (II)
that in the case of clause (iii) above, if any of such amounts reimbursed from
principal collections on the Mortgage Loans in Loan Group S are subsequently
recovered on the related mortgage loan, such recovery will first be applied to
increase the Group R Principal Distribution Amount up to such amounts and then
to increase the Group S Principal Distribution Amount) and (d) after the
reduction of the Class H-S Certificate Principal Balance to zero and
reimbursement of all Collateral Support Deficits allocated to the Class H-S
Certificates in full, that portion of the Group S Principal Distribution Amount
for that Distribution Date remaining after all distributions on that
Distribution Date to the Class H-S Certificates.
"Group R Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Group R Principal
Distribution Amount for the prior Distribution Date and (b) the aggregate
Certificate Balance of the Class A-1, Class A-2, Class A-3, Class A-1A, Class
A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates and the Class A-JFL Regular Interest, exceeds (2) the aggregate
amount distributed in respect of principal on the Class X-0, Xxxxx X-0, Class
A-3, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class
F, Class G and Class H Certificates and the Class A-JFL Regular Interest for
such preceding Distribution Date pursuant to Section 4.01(a) on such preceding
Distribution Date. The Group R Principal Shortfall for the initial Distribution
Date shall be zero.
"Group R-1 Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Group R-1 Principal
Distribution Amount for the prior Distribution Date and (b) the Certificate
Balance of the Class A-1, Class A-2 and Class A-3 Certificates, exceeds (2) the
aggregate amount distributed in respect of principal on the Class A-1, Class A-2
and Class A-3 Certificates for such preceding Distribution Date pursuant to
Section 4.01(a) on such preceding Distribution Date. The Group R-1 Principal
Shortfall for the initial Distribution Date shall be zero.
"Group R-2 Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Group R-2 Principal
Distribution Amount for the prior Distribution Date and (b) the Certificate
Balance of the Class A-1A Certificates, exceeds (2) the aggregate amount
distributed in respect of principal on the Class A-1A Certificates for such
preceding Distribution Date pursuant to Section 4.01(a) on such preceding
Distribution Date. The Group R-2 Principal Shortfall for the initial
Distribution Date shall be zero.
"Group R WAC Rate": (A) With respect to the first Distribution Date,
a per annum rate equal to 5.92657224% or (B) with respect to any Distribution
Date after the first Distribution Date, a per annum rate equal to the weighted
average of the applicable Net Mortgage Rates for the Mortgage Loans in Loan
Group R, weighted on the basis of their respective Stated Principal Balances as
of the preceding Distribution Date.
"Group S Available Distribution Amount": For any Distribution Date,
an amount equal to the sum of (a) that portion of the Available Distribution
Amount for that Distribution Date attributable to funds collected or advanced
with respect to the Mortgage Loans in Loan Group S and (b) after the reduction
of the Class H Certificate Principal Balance to zero and reimbursement of all
Collateral Support Deficits allocated to the Class H Certificates in full, that
portion of the Available Distribution Date attributable to funds collected or
advanced with respect to the Mortgage Loans in Loan Group R remaining after all
distributions on that Distribution Date to the Class H Certificates.
"Group S Certificates": Any Class A-1S, Class A-2S, Class A-2SFL,
Class A-3, Class A-3S, Class A-MS, Class A-JS, Class B-S, Class C-S, Class D-S,
Class E-S, Class F-S, Class G-S and Class H-S Certificates.
"Group S Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group S.
"Group S Principal Distribution Amount": With respect to any
Distribution Date and any Class of Group S Certificates (other than Class A-2SFL
Certificates) and the Class A-2SFL Regular Interest, an amount equal to the sum
of (a) the Group S Principal Shortfall for that Distribution Date, (b) the
Scheduled Principal Distribution Amount for Loan Group S for that Distribution
Date and (c) the Unscheduled Principal Distribution Amount for Loan Group S for
that Distribution Date; provided, that the Group S Principal Distribution Amount
for any Distribution Date will be reduced by the amount of any reimbursements of
(i) Nonrecoverable Advances, plus interest on such Nonrecoverable Advances, that
are paid or reimbursed from principal collections on the Mortgage Loans in Loan
Group S in a period during which such principal collections would have otherwise
been included in the Group S Principal Distribution Amount for that Distribution
Date, (ii) Workout-Delayed Reimbursement Amounts that are paid or reimbursed
from principal collections on the Mortgage Loans in Loan Group S in a period
during which such principal collections would have otherwise been included in
the Group S Principal Distribution Amount for that Distribution Date and (iii)
following the reimbursements described in clauses (i) and (ii), the excess, if
any of (A) the total amount of Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts, plus interest on such Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts, that would have been paid or reimbursed
from principal collections on the Mortgage Loans in Loan Group R as described in
clauses (i) and (ii) of the definition of Group R Principal Distribution Amount
had the aggregate amount available for distribution of principal with respect to
Loan Group R been sufficient to make such reimbursements in full, over (B) the
aggregate amount available for distribution of principal with respect to Loan
Group R for that Distribution Date (provided, further, (I) that in the case of
clauses (i) and (ii) above, if any of such amounts reimbursed from principal
collections on the Mortgage Loans in Loan Group S are subsequently recovered on
the related mortgage loan, subject to the application of any recovery to
increase the Group R Principal Distribution Amount as required under clause (II)
of the definition of Group R Principal Distribution Amount, such recovery will
be applied to increase the Group S Principal Distribution Amount for the
Distribution Date related to the period in which such recovery occurs; and (II)
that in the case of clause (iii) above, if any of such amounts reimbursed from
principal collections on the Mortgage Loans in Loan Group R are subsequently
recovered on the related mortgage loan, such recovery will first be applied to
increase the Group S Principal Distribution Amount up to such amounts and then
to increase the Group R Principal Distribution Amount) and (d) after the
reduction of the Class H Certificate Principal Balance to zero and reimbursement
of all Collateral Support Deficits allocated to the Class H Certificates in
full, that portion of the Group R Principal Distribution Amount for that
Distribution Date remaining after all distributions on that Distribution Date to
the Class H Certificates.
"Group S Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Group S Principal
Distribution Amount for the prior Distribution Date and (b) the aggregate
Certificate Balance of the Class A-1S, Class A-2S, Class A-3S, Class A-MS, Class
A-JS, Class B-S, Class C-S, Class D-S, Class E-S, Class F-S, Class G-S and Class
H-S Certificates and the Class A-2SFL Regular Interest, exceeds (2) the
aggregate amount distributed in respect of principal on the Class A-1S, Class
A-2S, Class A-3S, Class A-MS, Class A-JS, Class B-S, Class C-S, Class D-S, Class
E-S, Class F-S, Class G-S and Class H-S Certificates and the Class A-2SFL
Regular Interest for such preceding Distribution Date pursuant to Section
4.01(a) on such preceding Distribution Date. The Group S Principal Shortfall for
the initial Distribution Date shall be zero.
"Group S WAC Rate": (A) With respect to the first Distribution Date,
a per annum rate equal to 5.92963947% or (B) with respect to any Distribution
Date after the first Distribution Date, a per annum rate equal to the weighted
average of the applicable Net Mortgage Rates for the Mortgage Loans in Loan
Group S weighted on the basis of their respective Stated Principal Balances as
of the preceding Distribution Date.
"Group Subordinate Amount": With respect to any Distribution Date,
(A) with respect to Mortgage Loans in Loan Group R, an amount equal to the
excess of the aggregate Stated Principal Balance of the Mortgage Loans in Loan
Group R as of the beginning of the related Due Period over the Certificate
Balance of the Group R Certificates immediately prior to such Distribution Date
and (B) with respect to the Mortgage Loans in Loan Group S, an amount equal to
the excess of the Stated Principal Balance of the Mortgage Loans as of the
beginning of the related Due Period over the Certificate Balance of the Group S
Certificates immediately prior to such Distribution Date.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls, radon
gas, petroleum and petroleum products, urea formaldehyde and any substances
classified as being "in inventory," "usable work in process" or similar
classification which would, if classified as unusable, be included in the
foregoing definition.
"Independent": When used with respect to any accountants, a Person
who is "independent" within the meaning of Rule 2-01(b) of the Securities and
Exchange Commission's Regulation S-X. When used with respect to any specified
Person, any such Person who (i) is in fact independent of the Trustee, the
Co-Trustee, the Depositor, each Master Servicer, the Special Servicer, the
Directing Certificateholder, any Companion Holder, and all Affiliates thereof,
(ii) does not have any material direct financial interest in or any material
indirect financial interest in any of the Trustee, the Co-Trustee, the
Depositor, any Master Servicer, the Special Servicer, the Directing
Certificateholder, any Companion Holder or any Affiliate thereof and (iii) is
not connected with the Trustee, the Co-Trustee, the Depositor, any Master
Servicer, the Special Servicer, the Directing Certificateholder, any Companion
Holder or any Affiliate thereof as an officer, employee, promoter, underwriter,
trustee, partner, director or Person performing similar functions; provided,
however, that a Person shall not fail to be Independent of the Trustee, the
Co-Trustee, the Depositor, any Master Servicer, the Special Servicer, the
Directing Certificateholder, any Companion Holder or any Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of any Class of
securities issued by the Trustee, the Co-Trustee, the Depositor, any Master
Servicer, the Special Servicer, the Directing Certificateholder, any Companion
Holder or any Affiliate thereof, as the case may be, provided such beneficial
ownership constitutes less than 1% of the total assets of such Person.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust within the meaning of Section
856(d)(3) of the Code if the Trust were a real estate investment trust (except
that the ownership test set forth in that Section shall be considered to be met
by any Person that owns, directly or indirectly, 35% or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee, the
Co-Trustee, the applicable Master Servicer, any Companion Holder or the Trust,
delivered to the Trustee, any Companion Holder and the applicable Master
Servicer), so long as the Trust does not receive or derive any income from such
Person and provided that the relationship between such Person and the Trust is
at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5) (except that any Master Servicer or the Special Servicer shall not
be considered to be an Independent Contractor under the definition in this
clause (i) unless an Opinion of Counsel has been delivered to the Trustee to
that effect) or (ii) any other Person (including the Master Servicers and the
Special Servicer) upon receipt by the Trustee and the applicable Master Servicer
of an Opinion of Counsel, which shall be at no expense to the Trustee, the
Co-Trustee, the Master Servicers or the Trust Fund, to the effect that the
taking of any action in respect of any REO Property by such Person, subject to
any conditions therein specified, that is otherwise herein contemplated to be
taken by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or cause any income realized in respect of such REO Property to fail to
qualify as Rents from Real Property.
"Initial Purchaser": X.X. Xxxxxx Securities Inc.
"Initial Sub-Servicer": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement with any Master Servicer as of the Closing
Date, the Sub-Servicer under any such Sub-Servicing Agreement. The Initial
Sub-Servicers are set forth on Exhibit BB hereto.
"Initial Sub-Servicing Agreement": Any Sub-Servicing Agreement in
effect as of the Closing Date.
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated
under the Act.
"Insurance and Condemnation Proceeds": All proceeds paid under any
Insurance Policy or in connection with the full or partial condemnation of a
Mortgaged Property, in either case, to the extent such proceeds are not applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor or any tenants or ground lessors, in either case, in accordance with
the Servicing Standards (and in the case of any Serviced Mortgage Loan or the
Non-Serviced Mortgage Loans, to the extent any portion of such proceeds are
received by the Trustee in connection with such Serviced Mortgage Loan or the
Non-Serviced Mortgage Loans, as applicable, pursuant to the allocations set
forth in the related Intercreditor Agreement).
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Mortgage Loan or the
related Mortgaged Property.
"Intercreditor Agreements": Any of the 000 Xxxxxxxxx Xxxxxx
Intercreditor Agreement, the Skyline Portfolio Intercreditor Agreement, the
Solana Intercreditor Agreement, the Americold Pool 2 Intercreditor Agreement,
the Overland Park Trade Center Intercreditor Agreement, the Anchor Government
Assets Intercreditor Agreement, the Timberline Apartments Intercreditor
Agreement and the Turtle Creek Park Intercreditor Agreement, individually or
collectively, as the context may require.
"Interest Accrual Period": With respect to any Class of Regular
Certificates (other than (i) the Class A-2SFL Certificates if the Class A-2SFL
Distribution Conversion is not in effect or (ii) the Class A-JFL Certificates if
the Class A-JFL Distribution Conversion is not in effect), the Class A-2SFL or
Class A-JFL Regular Interests or the Uncertificated Middle-Tier Interests and
any Distribution Date, the period beginning on the first day of the calendar
month preceding the calendar month in which the related Distribution Date occurs
and ending on the last day of the calendar month preceding the calendar month in
which such Distribution Date occurs, calculated assuming that each month has 30
days and each year has 360 days. With respect to the Class A-2SFL and Class
A-JFL Certificates and any Distribution Date for which the Class A-2SFL
Distribution Conversion or Class A-JFL Distribution Conversion, as applicable,
is not in effect, the Interest Accrual Period will be the period from and
including the Distribution Date in the month preceding the month in which the
related Distribution Date occurs (or in the case of the first Distribution Date,
the Closing Date) to, but excluding the related Distribution Date, calculated
assuming that each month has the actual number of days in such Interest Accrual
Period and each year has 360 days.
"Interest Distribution Amount": With respect to any Class of Regular
Certificates (other than the Class A-2SFL and Class A-JFL Certificates) and the
Class A-2SFL and Class A-JFL Certificates Regular Interest for any Distribution
Date, an amount equal to the sum of the Distributable Certificate Interest and
the Class Unpaid Interest Shortfall with respect to such Class of Regular
Certificates or Regular Interest, as applicable, for such Distribution Date and
any Accrued Interest From Recoveries for such Class, to the extent not
previously paid for all prior Distribution Dates.
"Interest Reserve Account": The trust account or subaccount of the
Distribution Account created and maintained by the Trustee pursuant to Section
3.25 in the name of "Xxxxx Fargo Bank, N.A., as Trustee, in trust for the
registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2007-LDP10 Commercial Mortgage Pass-Through Certificates, Series 2007-LDP10,
Interest Reserve Account," into which the amounts set forth in Section 3.25
shall be deposited directly and which must be an Eligible Account or subaccount
of an Eligible Account.
"Interest Reserve Loan": Each Actual/360 Mortgage Loan.
"Interested Person": The Depositor, each Master Servicer, the
Special Servicer, any Independent Contractor engaged by the Special Servicer,
any Holder of a Certificate, each Companion Holder (but only with respect to the
related Serviced Whole Loan) or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section
5.02(b)(iii).
"JPMCC 2007-CIBC18 Master Servicer": The "Master Servicer" for the
Americold Pool 2 Whole Loan under the JPMCC 2007-CIBC18 Pooling Agreement, which
as of the date hereof is Capmark Finance Inc.; provided, however that if at any
time the Americold Pool 2 Whole Loan ceases to be serviced under the JPMCC
2007-CIBC18 Pooling Agreement, then, with respect to such Whole Loan, references
herein to the JPMCC 2007-CIBC18 Master Servicer shall be deemed to be references
to the successor "Master Servicer" for such Whole Loan.
"JPMCC 2007-CIBC18 Pooling Agreement": The (i) pooling and servicing
agreement dated as of March 7, 2007 among X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., as depositor, Capmark Finance Inc., as master servicer,
Midland Loan Services, Inc., as primary servicer, ARCap Servicing, Inc. and LNR
Partners, Inc., as special servicers and Xxxxx Fargo Bank, N.A., as trustee, as
from time to time amended, supplemented or modified relating to the issuance of
the X.X. Xxxxxx Chase Commercial Mortgage Securities Trust 2007-CIBC18,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC18 or with
respect to the Americold Pool 2 Whole Loan, any successor pooling and servicing
agreement entered into pursuant to the Americold Pool 2 Portfolio Intercreditor
Agreement.
"JPMCC 2007-CIBC18 Primary Servicer": The "Primary Servicer" for the
Americold Pool 2 Whole Loan under the JPMCC 2007-CIBC18 Pooling Agreement, which
as of the date hereof is Midland Loan Services, Inc.; provided, however that if
at any time the Americold Pool 2 Whole Loan ceases to be serviced under the
JPMCC 2007-CIBC18 Pooling Agreement, then, with respect to such Whole Loan,
references herein to the JPMCC 2007-CIBC18 Primary Servicer shall be deemed to
be references to the successor "Primary Servicer" for such Whole Loan.
"JPMCC 2007-CIBC18 Special Servicer": The "Special Servicer" for the
Americold Pool 2 Whole Loan under the JPMCC 2007-CIBC18 Pooling Agreement, which
as of the date hereof is LNR Partners, Inc.; provided, however that if at any
time the Americold Pool 2 Whole Loan ceases to be serviced under the JPMCC
2007-CIBC18 Pooling Agreement, then, with respect to such Whole Loan, references
herein to the JPMCC 2007-CIBC18 Special Servicer shall be deemed to be
references to the successor "Special Servicer" for such Whole Loan..
"JPMCC 2007-CIBC18 Trust": The X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Trust 2007-CIBC18, Commercial Mortgage Pass-Through Certificates,
Series 2007-CIBC18 trust, which is administered pursuant to the JPMCC
2007-CIBC18 Pooling Agreement.
"JPMCC 2007-CIBC18 Trustee": The "Trustee" under the JPMCC
2007-CIBC18 Pooling Agreement, which as of the date hereof is Xxxxx Fargo Bank,
N.A.
"JPMorgan": JPMorgan Chase Bank, National Association, a banking
association organized under the laws of the United States, or its successor in
interest.
"Late Collections": With respect to any Mortgage Loan or Companion
Loan, all amounts received thereon prior to the related Determination Date,
whether as payments, Insurance and Condemnation Proceeds, Liquidation Proceeds
or otherwise, which represent late payments or collections of principal or
interest due in respect of such Mortgage Loan or Companion Loan (without regard
to any acceleration of amounts due thereunder by reason of default) on a Due
Date prior to the immediately preceding Determination Date and not previously
recovered. With respect to any REO Loan, all amounts received in connection with
the related REO Property prior to the related Determination Date, whether as
Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of principal or interest due or
deemed due in respect of such REO Loan or the predecessor Mortgage Loan or
Companion Loan (without regard to any acceleration of amounts due under the
predecessor Mortgage Loan or Companion Loan by reason of default) on a Due Date
prior to the immediately preceding Determination Date and not previously
recovered. The term "Late Collections" shall specifically exclude Penalty
Charges.
"LIBOR": With respect to the Class A-2SFL Certificates and the Class
A-JFL Certificates and each Interest Accrual Period for which a Class A-2SFL
Distribution Conversion or a Class A-JFL Distribution Conversion, respectively,
is not in effect, the rate for deposits in U.S. Dollars, for a period equal to
one month, which appears on the Reuters Screen LIBOR01 Page as of 11:00 a.m.,
London time, on the related LIBOR Determination Date. If such rate does not
appear on the Reuters Screen LIBOR01 Page, the rate for that Interest Accrual
Period shall be determined on the basis of the rates at which deposits in U.S.
Dollars are offered by four major banks in the London interbank market selected
by the Trustee to provide such bank's offered quotation of such rates at
approximately 11:00 a.m., London time, on the related LIBOR Determination Date
to prime banks in the London interbank market for a period of one month,
commencing on the first day of such Interest Accrual Period and in an amount
that is representative for a single such transaction in the relevant market at
the relevant time. The Trustee shall request the principal London office of each
of such four banks to provide a quotation of its rate. If at least two such
quotations are provided, the rate for that Interest Accrual Period shall be the
arithmetic mean of the quotations. If fewer than two quotations are provided as
requested, the rate for that Interest Accrual Period shall be the arithmetic
mean of the rates quoted by major banks in New York City selected by the
Trustee, at approximately 11:00 a.m., New York City time, on the LIBOR
Determination Date with respect to such Mortgage Loan Accrual Period for loans
in U.S. Dollars to leading European banks for a period equal to one month,
commencing on the first day of such Interest Accrual Period and in an amount
that is representative for a single such transaction in the relevant market at
the relevant time. The Trustee shall determine LIBOR for each Interest Accrual
Period and the determination of LIBOR by the Trustee shall be binding absent
manifest error. LIBOR for the initial Interest Accrual Period shall be 5.32%.
"LIBOR Business Day": Any day on which commercial banks are open for
international business (including dealings in U.S. Dollar deposits) in London,
England.
"LIBOR Determination Date": (i) With respect to the initial Interest
Accrual Period, the date that is two LIBOR Business Days prior to the Closing
Date, and (ii) with respect to each Interest Accrual Period thereafter, the date
that is two LIBOR Business Days prior to the beginning of the related Interest
Accrual Period.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by the applicable Mortgage Loan Seller pursuant to Section 6
of the related Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is
purchased by the Controlling Class Option Holder or the Special Servicer
pursuant to Section 3.18(b); (v) such Mortgage Loan is purchased by the Special
Servicer, the applicable Master Servicer, the Holders of the Controlling Class
or the Holders of the Class LR Certificates pursuant to Section 9.01 or acquired
by the Sole Certificateholder in exchange for its Certificates pursuant to
Section 9.01; or (vi) such Mortgage Loan is purchased by (a) the applicable
Companion Holder pursuant to or as contemplated by Section 3.18(d) or (b) a
mezzanine lender pursuant to the related mezzanine intercreditor agreement. With
respect to any REO Property (and the related REO Loan), any of the following
events: (i) a Final Recovery Determination is made with respect to such REO
Property; (ii) such REO Property is purchased by the applicable Master Servicer,
the Special Servicer, the Holders of the Controlling Class or the Holders of the
Class LR Certificates pursuant to Section 9.01; or (iii) such REO Property is
purchased by (a) the applicable Companion Holder pursuant to or as contemplated
by Section 3.18(d) or (b) a mezzanine lender pursuant to the related mezzanine
intercreditor agreement.
"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by the Special Servicer in connection
with a liquidation of any Specially Serviced Mortgage Loan or REO Property
(except with respect to the Skyline Portfolio Mortgaged Property, the Solana
Mortgaged Property and the Americold Pool 2 Mortgaged Property) pursuant to
Section 3.18 (including, without limitation, legal fees and expenses, committee
or referee fees and, if applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": A fee payable to the Special Servicer with
respect to each Specially Serviced Mortgage Loan or REO Property (except with
respect to the Skyline Portfolio Mortgaged Property, the Solana Mortgaged
Property or the Americold Pool 2 Mortgaged Property) as to which the Special
Servicer receives (i) a full or discounted payoff (or an unscheduled partial
payment to the extent such prepayment is required by the Special Servicer as a
condition to a workout) with respect thereto from the related Mortgagor or (ii)
any Liquidation Proceeds or Insurance and Condemnation Proceeds with respect to
the related Mortgage Loan or REO Property (in any case, other than amounts for
which a Workout Fee has been paid, or will be payable), equal to the product of
the Liquidation Fee Rate and the proceeds of such full or discounted payoff or
other partial payment or the Liquidation Proceeds or Insurance and Condemnation
Proceeds (net of the related costs and expenses associated with the related
liquidation) related to such liquidated Specially Serviced Mortgage Loan or REO
Property, as the case may be; provided, however, that no Liquidation Fee shall
be payable with respect to any event described in (1) clause (iii)(A) of the
definition of "Liquidation Proceeds" if such purchase occurs within the first 90
days after the Special Servicer's initial determination of the fair value of
such Specially Serviced Mortgage Loan, (2) clause (iv) of the definition of
"Liquidation Proceeds" if such repurchase occurs within the time parameters
(including any applicable extension period) set forth in this Agreement and in
the related Mortgage Loan Purchase Agreement or, if such repurchase occurs after
such time period, the Mortgage Loan Seller was acting in good faith to resolve
such breach or defect, (3) clause (v) or clause (vi) of the definition of
"Liquidation Proceeds," (except that a Liquidation Fee will be payable with
respect to any purchase by a mezzanine lender if such purchase does not occur
within the time period provided for in the applicable intercreditor agreement,
or if no such time period is specified, 60 days following the date the related
Mortgage Loan becomes a Specially Serviced Mortgage Loan) or (4) with respect to
any Serviced Securitized Companion Loan, a purchase or repurchase of such
Serviced Securitized Companion Loan under an Other Pooling and Servicing
Agreement (for the avoidance of doubt, a Liquidation Fee payable under this
Agreement, in accordance herewith, may be payable on the entire related Serviced
Whole Loan).
"Liquidation Fee Rate": A rate equal to 1.00%.
"Liquidation Proceeds": Cash amounts received by or paid to any
Master Servicer or the Special Servicer in connection with: (i) the liquidation
(including a payment in full) of a Mortgaged Property or other collateral
constituting security for a Defaulted Mortgage Loan through a trustee's sale,
foreclosure sale, REO Disposition or otherwise, exclusive of any portion thereof
required to be released to the related Mortgagor in accordance with applicable
law and the terms and conditions of the related Mortgage Note and Mortgage; (ii)
the realization upon any deficiency judgment obtained against a Mortgagor; (iii)
(A) the purchase of a Defaulted Mortgage Loan by the Majority Controlling Class
Certificateholder, the Special Servicer or any Master Servicer or any of their
assignees pursuant to Section 3.18(a) or (B) any other sale thereof pursuant to
Section 3.18(c) or Section 3.18(e); (iv) the repurchase of a Mortgage Loan by
the applicable Mortgage Loan Seller pursuant to Section 6 of the related
Mortgage Loan Purchase Agreement; (v) the purchase of a Mortgage Loan or REO
Property by the Holders of the Controlling Class, the Special Servicer, any
Master Servicer or the Holders of the Class LR Certificates pursuant to Section
9.01; or (vi) the purchase of a Mortgage Loan or an REO Property by (A) the
Companion Holder pursuant to Section 3.18(d) or (B) any mezzanine lender of the
related Mortgage Loan or REO Loan.
"Loan Group": Either Loan Group S, Loan Group R-1, Loan Group
R-2 or Loan Group R.
"Loan Group R": The Mortgage Loans in Loan Group R-1 and Loan
Group R-2, collectively.
"Loan Group R-1": 169 Mortgage Loans as identified in Annex A-1 to
the Prospectus which sets forth the Loan Group designation with respect to each
Mortgage Loan.
"Loan Group R-2": 53 Mortgage Loans as identified in Annex A-1 to
the Prospectus which sets forth the Loan Group designation with respect to each
Mortgage Loan.
"Loan Group S": 51 Mortgage Loans as identified in Annex A-1 to the
Prospectus which sets forth the Loan Group designation with respect to each
Mortgage Loan.
"Los Angeles Media Tech Center Mortgage Loan": That certain Mortgage
Loan identified on the Mortgage Loan Schedule as loan number 75.
"Lower-Tier Distribution Account": The segregated account, accounts
or sub-accounts created and maintained by the Trustee pursuant to Section
3.04(b) in trust for the Certificateholders, which shall be entitled "Xxxxx
Fargo Bank, N.A., as Trustee, in trust for the registered Holders of X.X. Xxxxxx
Chase Commercial Mortgage Securities Trust 2007-LDP10 Commercial Mortgage
Pass-Through Certificates, Series 0000-XXX00, Xxxxx-Xxxx Distribution Account."
Any such account, accounts or sub-accounts shall be an Eligible Account.
"Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interests, (i) on or prior to the first Distribution
Date, an amount equal to the Original Lower-Tier Principal Amount of such Class
as specified in the Preliminary Statement hereto, and (ii) as of any date of
determination after the first Distribution Date, an amount determined in
accordance with footnote 5 to the related chart in the Preliminary Statement
hereto.
"Lower-Tier Regular Distribution Amount": As defined in Section
4.01(b).
"Lower-Tier REMIC": One of three separate REMICs comprising a
portion of the Trust Fund, the assets of which consist of the Mortgage Loans
(other than Excess Interest), any REO Property with respect thereto (or an
allocable portion thereof, in the case of any Serviced Mortgage Loan), or the
Trust Fund's beneficial interest in the REO Property with respect to the Skyline
Portfolio Whole Loan, Solana Whole Loan and the Americold Pool 2 Whole Loan,
such amounts related thereto as shall from time to time be held in the
Certificate Account (other than with respect to the Companion Loans), the REO
Account, if any, the Interest Reserve Account, the Gain-on-Sale Reserve Account
and the Lower-Tier Distribution Account, and all other property included in the
Trust Fund that is not in the Upper-Tier REMIC, the Middle-Tier REMIC or the
Grantor Trust.
"Lower-Tier Subordinate Balance Ratio": The ratio between the
Lower-Tier Principal Amount of the Class L-RB Interest and Class L-SB Interest
equal to the ratio between the Group Subordinate Amount of Loan Group R and the
Group Subordinate Amount of Loan Group S.
"LTV Ratio": With respect to any Mortgage Loan, as of any date of
determination, a fraction, expressed as a percentage, the numerator of which is
the scheduled principal balance of such Mortgage Loan as of such date (assuming
no defaults or prepayments on such Mortgage Loan prior to that date), and the
denominator of which is the Appraised Value of the related Mortgaged Property.
"MAI": Member of the Appraisal Institute.
"Majority Controlling Class Certificateholder": As of any date,
the Controlling Class Certificateholder owning a majority of the Percentage
Interests in the Controlling Class.
"Master Servicer": With respect to (a) the Group A Mortgage Loans
and any related Companion Loans and any related REO Properties, and any matters
relating to the foregoing, Master Servicer No. 1 and (b) the Group B Mortgage
Loans and any related Companion Loans and any related REO Properties, and any
matters relating to the foregoing, Master Servicer No. 2.
"Master Servicer No. 1": Midland Loan Services, Inc., and its
successors in interest and assigns, or any successor Master Servicer
appointed as allowed herein.
"Master Servicer No. 2": Wachovia Bank, National Association, and
its successors in interest and assigns, or any successor Master Servicer
appointed as allowed herein.
"Maturity Date": With respect to any Mortgage Loan or Companion Loan
as of any date of determination, the date on which the last payment of principal
is due and payable under the related Mortgage Note, after taking into account
all Principal Prepayments received prior to such date of determination, but
without giving effect to (i) any acceleration of the principal of such Mortgage
Loan or Companion Loan by reason of default thereunder or (ii) any grace period
permitted by the related Mortgage Note.
"MERS": Mortgage Electronic Registration System, Inc.
"Mezz Cap AB Mortgage Loan": The Anchor Government Assets
Mortgage Loan, the Timberline Apartments Mortgage Loan and the Turtle Creek
Park Mortgage Loan.
"Mezz Cap AB Mortgage Loan Intercreditor Agreements": The
Intercreditor Agreements related to the Mezz Cap AB Mortgage Loans.
"Middle-Tier Distribution Account": The segregated account or
accounts (or a subaccount of the Distribution Account) created and maintained by
the Trustee pursuant to Section 3.04(b) in trust for the Certificateholders,
which shall be entitled "Xxxxx Fargo Bank, N.A., as Trustee, in trust for the
registered Holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, 0000-XXX00, Xxxxxx-Xxxx
Distribution Account." Any such account or accounts shall be an Eligible Account
(or a subaccount of the Distribution Account).
"Middle-Tier Principal Amount": With respect to any Class of
Uncertificated Middle-Tier Interests, (i) on or prior to the first Distribution
Date, an amount equal to the Original Middle-Tier Principal Amount of such Class
as specified in the Preliminary Statement hereto, and (ii) as of any date of
determination after the first Distribution Date, an amount equal to the
Certificate Balance of the Class of Related Certificates on the Distribution
Date immediately prior to such date of determination (determined as adjusted
pursuant to Section 1.02(iii)).
"Middle-Tier Regular Distribution Amount": As defined in Section
4.01(b).
"Middle-Tier REMIC": One of the three separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Middle-Tier
Distribution Account.
"Monthly Payment": With respect to any Mortgage Loan or Companion
Loan, the scheduled monthly payment of principal and/or interest (other than
Excess Interest) on such Mortgage Loan or Companion Loan, including any Balloon
Payment, which is payable (as the terms of the applicable Mortgage Loan or
Companion Loan may be changed or modified in connection with a bankruptcy or
similar proceedings involving the related Mortgagor or by reason of a
modification, extension, waiver or amendment granted or agreed to pursuant to
the terms hereof) by a Mortgagor from time to time under the related Mortgage
Note and applicable law, without regard to any acceleration of principal of such
Mortgage Loan or Companion Loan by reason of default thereunder and without
respect to any Excess Interest.
"Moody's": Xxxxx'x Investors Service, Inc. If neither Moody's nor
any successor remains in existence, "Moody's" shall be deemed to refer to such
other nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Master Servicers and the Special Servicer, and specific ratings of
Moody's herein referenced shall be deemed to refer to the equivalent ratings of
the party so designated.
"Mortgage": With respect to any Mortgage Loan and Companion Loan,
the mortgage, deed of trust or other instrument securing a Mortgage Note and
creating a lien on the fee and/or leasehold interest in the related Mortgaged
Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan as
of any Due Date that has been modified to reduce the rate at which interest is
paid currently below the Mortgage Rate and capitalize the amount of such
interest reduction, the excess, if any, of (a) interest accrued on the Stated
Principal Balance thereof during the one-month interest accrual period set forth
in the related Mortgage Note at the related Mortgage Rate over (b) the interest
portion of the related Monthly Payment, as so modified or reduced, or, if
applicable, Assumed Scheduled Payment due on such Due Date.
"Mortgage File": With respect to each Mortgage Loan and Companion
Loan, if applicable, but subject to Section 2.01, collectively the following
documents:
(i) the original executed Mortgage Note bearing, or
accompanied by, all prior and intervening endorsements, assignments
or allonges showing a complete chain of endorsement or assignment
from the originator of the Mortgage Loan to the most recent
endorsee, and further endorsed (at the direction of the Depositor
given pursuant to the applicable Mortgage Loan Purchase Agreement),
on its face or by allonge attached thereto, without recourse,
representation or warranty, express or implied to the order of the
Trustee in the following form: "Pay to the order of Xxxxx Fargo
Bank, N.A., as trustee for the registered holders of X.X. Xxxxxx
Chase Commercial Mortgage Securities Trust 2007-LDP10 Commercial
Mortgage Pass-Through Certificates, Series 2007-LDP10" or in blank;
provided that the requirements of this clause (i) will be satisfied
by delivery of a signed lost note affidavit and indemnity properly
assigned or endorsed to the Trustee as described above, with a copy
of the Mortgage Note attached to it;
(ii) the original Mortgage (or a certified or other copy
thereof from the applicable recording office) and originals (or
certified or other copies from the applicable recording office) of
any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the most
recent mortgagee of record, in each case with evidence of recording
indicated thereon (except for recording information not yet
available if the Mortgage or an assignment thereof has not been
returned from the applicable recording office);
(iii) an original assignment of the Mortgage, in complete and
recordable form (except for recording information not yet available
if the instrument being assigned has not been returned from the
applicable recording office), executed by the most recent assignee
of record thereof prior to the Trustee, or if none, by the
originator to "Xxxxx Fargo Bank, N.A., as trustee for the registered
holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-LDP10 Commercial Mortgage Pass-Through Certificates, Series
2007-LDP10" and, in the case of any Serviced Whole Loan, in its
capacity as "lead lender" under the related Intercreditor Agreement
on behalf of the related Companion Holder, or in blank, provided
that, if the related Mortgage has been recorded in the name of
Mortgage Electronic Registration Systems, Inc. ("MERS") or its
designee, no assignment of Mortgage in favor of the Trustee will be
required to be recorded or delivered and instead, the applicable
Mortgage Loan Seller pursuant to the applicable Mortgage Loan
Purchase Agreement shall take all actions as are necessary to cause
the Trustee to be shown as, and the Trustee shall take all actions
necessary to confirm that it is shown as, and shall provide the
related Master Servicer and the Special Servicer with reasonable
evidence that it is, 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;
(iv) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the most recent assignee of record, in each case with
evidence of recording thereon (except for recording information not
yet available if the Assignment of Leases or an assignment thereof
has not been returned from the applicable recording office);
(v) an original assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage and to the
extent not already assigned pursuant to preceding clause (iii)), in
recordable form (except for recording information not yet available
if the instrument being assigned has not been returned from the
applicable recording office), executed by the applicable assignee of
record to "Xxxxx Fargo Bank, N.A., as trustee for the registered
holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-LDP10 Commercial Mortgage Pass-Through Certificates, Series
2007-LDP10" and, in the case of any Serviced Whole Loan, in its
capacity as "lead lender" under the related Intercreditor Agreement
on behalf of the related Companion Holder, or in blank, provided
that if the related Mortgage has been recorded in the name of MERS
or its designee, no assignment of Assignment of Leases in favor of
the Trustee will be required to be recorded or delivered and
instead, the applicable Mortgage Loan Seller pursuant to the
applicable Mortgage Loan Purchase Agreement shall take all actions
as are necessary to cause the Trustee to be shown as, and the
Trustee shall take all actions necessary to confirm that it is shown
as, and shall provide the related Master Servicer and the Special
Servicer with reasonable evidence that it is, 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
assignments of leases maintained by MERS;
(vi) an original or copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the applicable Mortgage Loan Seller;
(vii) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage), in complete
form, executed by the applicable Mortgage Loan Seller to "Xxxxx
Fargo Bank, N.A., as trustee for the registered holders of X.X.
Xxxxxx Chase Commercial Mortgage Securities Trust 2007-LDP10
Commercial Mortgage Pass-Through Certificates, Series 2007-LDP10"
and, in the case of any Serviced Whole Loan, in its capacity as
"lead lender" under the related Intercreditor Agreement on behalf of
the related Companion Holder; provided, if the related Security
Agreement has been recorded in the name of MERS or its designee, no
assignment of such Security Agreement in favor of the Trustee will
be required to be prepared or delivered and instead, the applicable
Mortgage Loan 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 the Trustee shall take all necessary actions to confirm that it
is shown as and shall provide the related Master Servicer and the
Special Servicer with reasonable evidence that it is) the owner of
the related Security Agreement on the records of MERS for purposes
of the system of recording transfers of beneficial ownership of
security agreements maintained by MERS;
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements, with
evidence of recording thereon, where appropriate, in those instances
where the terms or provisions of the Mortgage, Mortgage Note or any
related security document have been consolidated or modified or the
Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof, together with all endorsements or riders that were issued
with or subsequent to the issuance of such policy, insuring the
priority of the Mortgage as a first lien on the Mortgagor's fee or
leasehold interest in the Mortgaged Property, or if the policy has
not yet been issued, an original or copy of a "marked-up" written
commitment (marked as binding and in all cases countersigned by the
title insurer or its authorized agent) or the pro forma or specimen
title insurance policy (accepted or approved in writing by the title
insurer or its authorized agent) or an agreement to provide the same
pursuant to lender's escrow trust instructions executed by an
authorized representative of the title insurance company, provided
the actual policy is issued within eighteen (18) months from the
Closing Date, in connection with the related Mortgage Loan;
(x) the original or copy of any guaranty of the obligations of
the Mortgagor under the Mortgage Loan and any intervening
assignments;
(xi) all UCC Financing Statements, assignments and
continuation statements or copies thereof, as filed or recorded, or
in form that is complete and suitable for filing or recording, as
appropriate, or other evidence of filing or recording sufficient to
perfect (and maintain the perfection of) the security interest held
by the originator of the Mortgage Loan (and each assignee of record
prior to the Trustee) in and to the personalty of the Mortgagor at
the Mortgaged Property (in each case with evidence of filing or
recording thereon, with the exception of filing or recording
information not yet available because the UCC Financing Statement,
assignment or continuation statement, as the case may be, has not
yet been returned from the applicable filing or recording office),
and to transfer such UCC Financing Statements to the Trustee,
provided, if the related Mortgage has been recorded in the name of
MERS or its designee, no UCC Financing Statement in favor of the
Trustee will be required to be recorded or delivered and instead,
the applicable Mortgage Loan 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 the Trustee shall take all actions necessary to
confirm that it is shown as, and shall provide the related Master
Servicer and the Special Servicer with reasonable evidence that it
is, 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 UCC Financing Statements maintained by MERS;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to
above was not signed by the Mortgagor;
(xiii) with respect to any Mortgage Loans with Additional
Debt, a co-lender agreement, a subordination agreement or other
intercreditor agreement, pursuant to which such Additional Debt will
be subordinated to such Mortgage Loan as set forth in such
intercreditor agreement;
(xiv) any additional documents required to be added to the
Mortgage File pursuant to this Agreement;
(xv) with respect to any Mortgage Loan secured by a ground
lease, the related ground lease or a certified copy thereof and any
related ground lessor estoppels;
(xvi) a copy of any letter of credit securing such Mortgage
Loan and, within sixty (60) days of the Closing Date or such earlier
date as required by the issuer of the letter of credit, a copy of
the appropriate transfer or assignment documents (which may be in
the form of an amendment) for such letter of credit;
(xvii) a copy of any Environmental Indemnity Agreement,
together with a copy of any environmental insurance policy;
(xviii) a copy of any loan agreement(s);
(xix) a copy of any escrow agreement(s);
(xx) a copy of any franchise agreements and comfort letters
related thereto;
(xxi) a copy of any lock-box or cash management agreement(s);
(xxii) a list related to such Mortgage Loan indicating the
related Mortgage Loan documents included in the related Mortgage
File (the "Mortgage Loan Checklist");
(xxiii) with respect to each Mortgage Loan that has one or
more Companion Loan(s), the related Intercreditor Agreement and a
copy of each Mortgage Note relating to such Companion Loan(s),
rather than the original; and
(xxiv) with respect to the Non-Serviced Mortgage Loans, a copy
of each loan's respective Non-Serviced Pooling Agreement;
provided, however, that (a) whenever the term "Mortgage File" is used to refer
to documents held by the Trustee, or a Custodian appointed thereby, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually received by the Trustee or a Custodian
appointed thereby, (b) if there exists with respect to any Crossed Group only
one original or certified copy of any document referred to in the definition of
"Mortgage File" covering all of the Mortgage Loans in such Crossed Group, then
the inclusion of such original or certified copy in the Mortgage File for any of
the Mortgage Loans constituting such Crossed Group shall be deemed the inclusion
of such original or certified copy in the Mortgage File for each such Mortgage
Loan, (c) to the extent that this Agreement refers to a "Mortgage File" for any
Companion Loan, such "Mortgage File" shall be construed to mean the Mortgage
File for the related Mortgage Loan (except that references to the Mortgage Note
otherwise described above shall be construed to instead refer to a photocopy of
such Mortgage Note), (d) the execution and/or recordation of any assignment of
Mortgage, any separate assignment of Assignment of Leases and any assignment of
any UCC Financing Statement in the name of the Trustee shall not be construed to
limit the beneficial interest of the related Companion Holder(s) in such
instrument and the benefits intended to be provided to them by such instrument,
it being acknowledged that (i) the Trustee shall hold such record title for the
benefit of the Trust as the holder of the related Mortgage Loan and the related
Companion Holder(s) collectively and (ii) any efforts undertaken by the Trustee,
any Master Servicer, or the Special Servicer on its behalf to enforce or obtain
the benefits of such instrument shall be construed to be so undertaken by
Trustee, the applicable Master Servicer or the Special Servicer for the benefit
of the Trust as the holder of the applicable Mortgage Loan and the related
Companion Holder(s) collectively and (e) with respect to the Non-Serviced
Mortgage Loans, the preceding document delivery requirements will be met by the
delivery by the applicable Mortgage Loan Seller of copies of the documents
specified above (other than the Note and intervening endorsements evidencing
such Mortgage Loan, with respect to which the original shall be required),
including a copy of the Mortgage securing the applicable Mortgage Loan.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other documents contained in the related Mortgage File and
any related agreements. As used in this Agreement, the term "Mortgage Loan" does
not include any Companion Loan.
"Mortgage Loan Checklist": As defined in the definition of
"Mortgage File."
"Mortgage Loan Purchase Agreement": Each of the agreements between
the Depositor and each Mortgage Loan Seller, relating to the transfer of all of
such Mortgage Loan Seller's right, title and interest in and to the related
Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Exhibit B, which list sets forth the following information with respect to each
Mortgage Loan:
(i) the loan identification number (as specified in Annex A-1
to the Prospectus);
(ii) the Mortgagor's name;
(iii) the street address (including city, county, state and
zip code) and name of the related Mortgaged Property;
(iv) the Mortgage Rate in effect at origination;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) original term to stated maturity, (b) remaining
term to stated maturity and (c) Maturity Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due (i) with respect to
each Mortgage Loan (other than Mortgage Loans on which only interest
is due prior to a Balloon Payment), on the first Due Date following
the Cut-off Date on which principal is due on such Mortgage Loan and
(ii) with respect to Mortgage Loans on which only interest is due
prior to a Balloon Payment, on the first Due Date following the
Cut-off Date;
(xi) the applicable Servicing Fee Rate;
(xii) whether the Mortgage Loan is a 30/360 Mortgage Loan or
an Actual/360 Mortgage Loan;
(xiii) whether such Mortgage Loan is secured by the related
Mortgagor's interest in a ground lease;
(xiv) identifying any Mortgage Loans with which such Mortgage
Loan is cross-defaulted or cross-collateralized;
(xv) the originator of such Mortgage Loan and the Mortgage
Loan Seller;
(xvi) whether such Mortgage Loan has a guarantor;
(xvii) whether such Mortgage Loan is secured by a letter of
credit;
(xviii) amount of any reserve or escrowed funds that were
deposited at origination and any ongoing periodic deposit
requirements;
(xix) number of grace days;
(xx) whether a cash management agreement or lock-box agreement
is in place;
(xxi) the general property type of the related Mortgaged
Property;
(xxii) whether the Mortgage Loan permits defeasance;
(xxiii) the applicable Servicing Group to which the Mortgage
Loan belongs;
(xxiv) the applicable Loan Group to which the Mortgage Loan
belongs;
(xxv) the Anticipated Repayment Date, if applicable; and
(xxvi) the Revised Rate of such Mortgage Loan, if any.
Such Mortgage Loan Schedule shall also set forth the aggregate of
the amounts described under clause (vii) above for all of the Mortgage Loans.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"Mortgage Loan Seller": Each of: (1) AIG, or its successor in
interest and SOME II, or its successor in interest, (2) Eurohypo, or its
successor in interest, (3) JPMorgan, or its successors in interest, (4) NCCI, or
its successors in interest, (5) PNC Bank, or its successors in interest and (6)
UBS, or its successor in interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan or Companion Loan, together
with any rider, addendum or amendment thereto.
"Mortgage Rate": With respect to: (i) any Mortgage Loan or Companion
Loan on or prior to its Maturity Date, the annual rate at which interest is
scheduled (in the absence of a default) to accrue on such Mortgage Loan or
Companion Loan from time to time in accordance with the related Mortgage Note
and applicable law, exclusive of the Excess Rate; or (ii) any Mortgage Loan or
Companion Loan after its Maturity Date, the annual rate described in clause (i)
above determined without regard to the passage of such Maturity Date.
"Mortgaged Property": The real property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"NCCI": Nomura Credit & Capital, Inc., a Delaware corporation, or
its successor in interest.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Due Period,
exceeds (b) the aggregate amount deposited by the applicable Master Servicer in
its Certificate Account for such Distribution Date pursuant to Section 3.19 in
connection with such Prepayment Interest Shortfalls.
"Net Investment Earnings": With respect to (1) each Certificate
Account, the Servicing Accounts or the REO Account for any period from any
Distribution Date to the immediately succeeding P&I Advance Date and (2) each
Distribution Account, Gain-on-Sale Reserve Account and Interest Reserve Account
for any period from any P&I Advance Date to the immediately succeeding
Distribution Date, the amount, if any, by which the aggregate of all interest
and other income realized during such period on funds relating to the Trust Fund
held in such account, exceeds the aggregate of all losses, if any, incurred
during such period in connection with the investment of such funds in accordance
with Section 3.06.
"Net Investment Loss": With respect to (1) each Certificate Account,
the Servicing Accounts or the REO Account for any period from any Distribution
Date to the immediately succeeding P&I Advance Date and (2) each Distribution
Account, Gain-on-Sale Reserve Account and Interest Reserve Account for any
period from any P&I Advance Date to the immediately succeeding Distribution
Date, the amount by which the aggregate of all losses, if any, incurred during
such period in connection with the investment of funds relating to the Trust
Fund held in such account in accordance with Section 3.06, exceeds the aggregate
of all interest and other income realized during such period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO Loan
as of any date of determination, a rate per annum equal to the related Mortgage
Rate then in effect, minus the Administrative Cost Rate; provided, that for
purposes of calculating Pass-Through Rates, the Net Mortgage Rate for any
Mortgage Loan will be determined without regard to any modification, waiver or
amendment of the terms of such Mortgage Loan, whether agreed to by the
applicable Master Servicer or the Special Servicer or resulting from a
bankruptcy, insolvency or similar proceeding involving the Mortgagor; provided,
further, that if any Mortgage Loan does not accrue interest on the basis of a
360-day year consisting of twelve 30-day months, then, solely for purposes of
calculating Pass-Through Rates, the Net Mortgage Rate of such Mortgage Loan for
any one-month period preceding a related Due Date will be the annualized rate at
which interest would have to accrue in respect of such Mortgage Loan on the
basis of a 360-day year consisting of twelve 30-day months in order to produce
the aggregate amount of interest actually accrued (exclusive of Default Interest
or Excess Interest) in respect of such Mortgage Loan during such one-month
period at the related Net Mortgage Rate; provided, further, that, with respect
to each Interest Reserve Loan, the Net Mortgage Rate for the one month period
(A) preceding the Due Dates that occur in January and February in any year which
is not a leap year or preceding the Due Date that occurs in February in any year
which is a leap year (in either case, unless the related Distribution Date is
the final Distribution Date), will be the per annum rate stated in the related
Mortgage Note less the related Administrative Cost Rate, and (B) preceding the
Due Date in March (or February, if the related Distribution Date is the final
Distribution Date) will be determined inclusive of the one day of interest
retained for the immediately preceding February or January, if applicable). With
respect to any REO Loan, the Net Mortgage Rate shall be calculated as described
above, determined as if the predecessor Mortgage Loan had remained outstanding.
"Net Operating Income": With respect to any Mortgaged Property, for
any Mortgagor's fiscal year end, Net Operating Income will be calculated in
accordance with the standard definition of "Net Operating Income" approved from
time to time endorsed and put forth by the CMSA.
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust has the right to
renegotiate the terms of such lease.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class B, Class C, Class D, Class E, Class E-S, Class F,
Class F-S, Class G, Class G-S, Class H, Class H-S, Class J, Class K, Class L,
Class M, Class N, Class P, Class NR, Class R, Class S, Class MR or Class LR
Certificate.
"Non-Serviced Mortgage Loans": The Skyline Portfolio Mortgage Loan,
the Solana Mortgage Loan and the Americold Pool 2 Mortgage Loan.
"Non-Serviced Pooling Agreement": (A) With respect to the Skyline
Portfolio Mortgage Loan and the Solana Mortgage Loan, the BACM 2007-1 Pooling
Agreement, and (B) with respect to the Americold Pool 2 Mortgage Loan, the JPMCC
2007-CIBC18 Pooling Agreement.
"Non-Specially Serviced Mortgage Loan": Any Mortgage Loan or
Companion Loan that is not a Specially Serviced Mortgage Loan.
"Non-U.S. Person": Any person other than a U.S. Person, unless, with
respect to the Transfer of a Residual Certificate, (i) such person holds such
Residual Certificate in connection with the conduct of a trade or business
within the United States and furnishes the Transferor and the Certificate
Registrar with an effective Internal Revenue Service Form W-8ECI (or successor
form) or (ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes. A Person
shall be treated as a Non-U.S. Person, (A) notwithstanding clause (i) of the
preceding sentence, if it is a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes) any interest in which is owned
(or may be owned pursuant to the applicable partnership agreement), directly or
indirectly (other than through a corporation that is a U.S. Person) by a
Non-U.S. Person or (B) if such Person is a U.S. Person with respect to whom
income from a Residual Certificate is attributable to a foreign permanent
establishment of fixed base, within the meaning of an applicable income treaty,
of such Person or any other U.S. Person.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance; provided, that a Workout-Delayed Reimbursement
Amount shall constitute a Nonrecoverable Advance only when the Person making
such determination in accordance with the procedures specified in the definition
of Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, as
applicable, and taking into account factors such as all other outstanding
Advances, either (a) has determined in its reasonable judgment that such
Workout-Delayed Reimbursement Amount would not ultimately be recoverable
(including interest on such Advance) from Late Collections, Insurance Proceeds
or Liquidation Proceeds, or any other recovery on or in respect of the related
Mortgage Loan or REO Loan, or (b) has determined in accordance with the
Servicing Standards or such other applicable standard that such Workout-Delayed
Reimbursement Amount, along with any other Workout-Delayed Reimbursement Amounts
and Nonrecoverable Advances, would not ultimately be recovered from aggregate
principal collections in respect of the pool of the Mortgage Loans or REO Loans.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Loan which, in the
reasonable judgment of the applicable Master Servicer or the Co-Trustee, as
applicable, will not be ultimately recoverable, together with any accrued and
unpaid interest thereon at the Reimbursement Rate, from Late Collections or any
other recovery on or in respect of such Mortgage Loan or REO Loan; provided,
however, that the Special Servicer may, at its option, in consultation with the
Directing Certificateholder, make a determination in accordance with the
Servicing Standards, that any P&I Advance previously made or proposed to be made
is a Nonrecoverable P&I Advance and shall deliver to the applicable Master
Servicer or the Co-Trustee (and with respect to any Serviced Mortgage Loan, to
any Other Servicer, and with respect to the Non-Serviced Mortgage Loans, to the
applicable master servicer) notice of such determination. Any such determination
shall be conclusive and binding on the applicable Master Servicer and the
Co-Trustee, provided, however, the Special Servicer shall have no such
obligation to make an affirmative determination that any P&I Advance is or would
be nonrecoverable, and in the absence of a determination by the Special Servicer
that such P&I Advance is a Nonrecoverable P&I Advance, such decision shall
remain with the applicable Master Servicer or Co-Trustee, as applicable. In
making such recoverability determination, the applicable Master Servicer,
Special Servicer or Co-Trustee, as applicable, will be entitled (a) to consider
(among other things) (i) the obligations of the Mortgagor under the terms of the
related Mortgage Loan as it may have been modified and (ii) the related
Mortgaged Properties in their "as is" or then current conditions and
occupancies, as modified by such party's assumptions (consistent with the
Servicing Standards in the case of the applicable Master Servicer and the
Special Servicer or its good faith business judgment in the case of the
Co-Trustee) regarding the possibility and effects of future adverse change with
respect to such Mortgaged Properties, (b) to estimate and consider (among other
things) future expenses (consistent with the Servicing Standards in the case of
the applicable Master Servicer and the Special Servicer or in its good faith
business judgment in the case of the Co-Trustee) among other things and the
timing of recoveries and (c) to give due regard to the existence of any
Nonrecoverable Advances which, at the time of such consideration, the recovery
of which are being deferred or delayed by either Master Servicer, in light of
the fact that related recoveries on or in respect of such Mortgage Loan are a
source of recovery not only for the Advance under consideration but also a
potential source of recovery for such delayed or deferred Advance. In addition,
any Person, in considering whether a P&I Advance is a Nonrecoverable Advance,
will be entitled to give due regard to the existence of any outstanding
Nonrecoverable Advance or Workout Delayed Reimbursement Amount with respect to
other Mortgage Loans which, at the time of such consideration, the reimbursement
of which is being deferred or delayed by the applicable Master Servicer or the
Co-Trustee because there is insufficient principal available for such
reimbursement, in light of the fact that proceeds on the related Mortgage Loan
are a source of reimbursement not only for the P&I Advance under consideration,
but also as a potential source of reimbursement of such Nonrecoverable Advance
or Workout-Delayed Reimbursement Amounts which are or may be being deferred or
delayed. In addition, any such Person may update or change its recoverability
determinations at any time (but not reverse any other Person's determination
that an Advance is a Nonrecoverable Advance) and, consistent with the Servicing
Standards in the case of the applicable Master Servicer, or in its good faith
business judgment in the case of the Co-Trustee, may obtain, promptly upon
request, from the Special Servicer any reasonably required analysis, Appraisals
or market value estimates or other information in the Special Servicer's
possession for making a recoverability determination. Absent bad faith, the
applicable Master Servicer's, Special Servicer's or the Co-Trustee's
determination as to the recoverability of any P&I Advance shall be conclusive
and binding on the Certificateholders. The determination by the applicable
Master Servicer or the Special Servicer or the Co-Trustee, as applicable, that
the applicable Master Servicer or the Co-Trustee, as the case may be, has made a
Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would
constitute a Nonrecoverable P&I Advance, or any updated or changed
recoverability determination, shall be evidenced by an Officer's Certificate
delivered by either the Special Servicer or the applicable Master Servicer to
the other and to the Co-Trustee, the Trustee, the Directing Certificateholder
(and in the case of any Serviced Mortgage Loan, any Other Servicer), the
Depositor, or by the Co-Trustee to the Depositor, the Trustee, the applicable
Master Servicer, the Special Servicer and the Directing Certificateholder (and
in the case of any Serviced Mortgage Loan, any Other Servicer). The Officer's
Certificate shall set forth such determination of nonrecoverability and the
considerations of the applicable Master Servicer, the Special Servicer or the
Co-Trustee, as applicable, forming the basis of such determination (which shall
be accompanied by, to the extent available, income and expense statements, rent
rolls, occupancy status, property inspections and any other information used by
the applicable Master Servicer, the Special Servicer or the Co-Trustee, as
applicable, to make such determination and shall include any existing Appraisal
of the related Mortgage Loan or Mortgaged Property). The Co-Trustee shall be
entitled to conclusively rely on the applicable Master Servicer's or Special
Servicer's determination that a P&I Advance is or would be nonrecoverable, and
the applicable Master Servicer shall be entitled to conclusively rely on the
Special Servicer's determination that a P&I Advance is or would be
nonrecoverable. In the case of a cross-collateralized Mortgage Loan, such
recoverability determination shall take into account the cross-collateralization
of the related cross-collateralized Mortgage Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan (other than the
Non-Serviced Mortgage Loans) or REO Property which, in the reasonable judgment
of the applicable Master Servicer, the Special Servicer or the Co-Trustee, as
the case may be, will not be ultimately recoverable, together with any accrued
and unpaid interest thereon, at the Reimbursement Rate, from Late Collections or
any other recovery on or in respect of such Mortgage Loan or REO Property. In
making such recoverability determination, such Person will be entitled to
consider (among other things) only the obligations of the Mortgagor under the
terms of the related Mortgage Loan as it may have been modified, to consider
(among other things) the related Mortgaged Properties in their "as is" or then
current conditions and occupancies, as modified by such party's assumptions
(consistent with the Servicing Standards in the case of the applicable Master
Servicer or the Special Servicer or in its good faith business judgment in the
case of the Co-Trustee) regarding the possibility and effects of future adverse
change with respect to such Mortgaged Properties, to estimate and consider
(consistent with the Servicing Standards in the case of the applicable Master
Servicer or the Special Servicer or in its good faith business judgment in the
case of the Co-Trustee) (among other things) future expenses and to estimate and
consider (among other things) the timing of recoveries. In addition, any Person,
in considering whether a Servicing Advance is a Nonrecoverable Servicing
Advance, will be entitled to give due regard to the existence of any
Nonrecoverable Advance or Workout Delayed Reimbursement Amounts with respect to
other Mortgage Loans which, at the time of such consideration, the recovery of
which are being deferred or delayed by the applicable Master Servicer, in light
of the fact that proceeds on the related Mortgage Loan are a source of recovery
not only for the Servicing Advance under consideration, but also as a potential
source of recovery of such Nonrecoverable Advance or Workout Delayed
Reimbursement Amounts which are or may be being deferred or delayed. In
addition, any such Person may update or change its recoverability determinations
at any time (but not reverse any other Person's determination that an Advance is
a Nonrecoverable Advance) and, consistent with the Servicing Standards, in the
case of the applicable Master Servicer, may obtain, promptly upon request, from
the Special Servicer any reasonably required analysis, Appraisals or market
value estimates or other information in the Special Servicer's possession for
making a recoverability determination. The determination by the applicable
Master Servicer, the Special Servicer or the Co-Trustee, as the case may be,
that it has made a Nonrecoverable Servicing Advance or that any proposed
Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance,
or any updated or changed recoverability determination, shall be evidenced by an
Officer's Certificate delivered by either of the Special Servicer or the
applicable Master Servicer to the other and to the Co-Trustee, the Trustee, the
Directing Certificateholder and in the case of any Serviced Mortgage Loan, any
Other Servicer, and the Depositor, or by the Co-Trustee to the Depositor, the
Trustee, the applicable Master Servicer, the Special Servicer and the Directing
Certificateholder and in the case of any Serviced Mortgage Loan, any Other
Servicer; provided, however, that the Special Servicer may, at its option, in
consultation with the Directing Certificateholder, make a determination in
accordance with the Servicing Standards, that any Servicing Advance previously
made or proposed to be made is a Nonrecoverable Servicing Advance and shall
deliver to the applicable Master Servicer and the Co-Trustee notice of such
determination. Any such determination shall be conclusive and binding on the
applicable Master Servicer, the Special Servicer and the Co-Trustee; provided,
however, the Special Servicer shall have no such obligation to make an
affirmative determination that any Servicing Advance is or would be
nonrecoverable, and in the absence of a determination by the Special Servicer
that such Advance is a Nonrecoverable Servicing Advance, such decision shall
remain with the applicable Master Servicer or Co-Trustee, as applicable. The
Officer's Certificate shall set forth such determination of nonrecoverability
and the considerations of the applicable Master Servicer, the Special Servicer
or the Co-Trustee, as applicable, forming the basis of such determination (which
shall be accompanied by, to the extent available, related income and expense
statements, rent rolls, occupancy status and property inspections, and shall
include any existing Appraisal of the related Mortgage Loan or Mortgaged
Property). The Special Servicer shall promptly furnish any party required to
make Servicing Advances hereunder with any information in its possession
regarding the Specially Serviced Mortgage Loans and REO Properties as such party
required to make Servicing Advances may reasonably request for purposes of
making recoverability determinations. The Co-Trustee shall be entitled to
conclusively rely on the applicable Master Servicer's or Special Servicer's, as
the case may be, determination that a Servicing Advance is or would be
nonrecoverable, and the applicable Master Servicer shall be entitled to
conclusively rely on the Special Servicer's determination that a Servicing
Advance is or would be nonrecoverable. In the case of a cross collateralized
Mortgage Loan, such recoverability determination shall take into account the
cross collateralization of the related cross collateralized Mortgage Loan. The
determination as to the recoverability of any servicing advance previously made
or proposed to be made in respect of the Skyline Portfolio Whole Loan or the
Solana Whole Loan shall be made by the BACM 2007-1 Master Servicer, the BACM
2007-1 Special Servicer or the BACM 2007-1 Trustee, as the case may be, pursuant
to the BACM 2007-1 Pooling Agreement. The determination as to the recoverability
of any servicing advance previously made or proposed to be made in respect of
the Americold Pool 2 Whole Loan shall be made by the JPMCC 2007-CIBC18 Primary
Servicer, the JPMCC 2007-CIBC18 Special Servicer or the JPMCC 2007-CIBC18
Trustee, as the case may be, pursuant to the JPMCC 2007-CIBC18 Pooling
Agreement.
"Notional Amount": In the case of the Class X Certificates, the
Class X Notional Amount. In the case of each Component, the amount set forth in
the applicable definition thereof.
"Offered Certificates": The Class A-1, Class A-1S, Class A-2, Class
A-2S, Class A-2SFL, Class A-3, Class A-3S, Class A-1A, Class X, Class A-M, Class
A-MS, Class A-J, Class A-JFL, Class A-JS, Class B-S, Class C-S and Class D-S
Certificates.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the applicable Master Servicer or the Special Servicer, as the case may be,
or a Responsible Officer of the Trustee or Co-Trustee, as the case may be.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the applicable Master
Servicer or the Special Servicer, acceptable in form and delivered to the
Trustee and the Co-Trustee, except that any opinion of counsel relating to (a)
the qualification of the Upper-Tier REMIC, Middle-Tier REMIC or Lower-Tier REMIC
as a REMIC, (b) compliance with the REMIC Provisions, (c) qualification of the
Grantor Trust as a grantor trust under subpart E, Part I of subchapter J of the
Code for federal income tax purposes or (d) the resignation of the applicable
Master Servicer, the Special Servicer or the Depositor pursuant to Section 6.04,
must be an opinion of counsel who is in fact Independent of the Depositor, the
applicable Master Servicer or the Special Servicer, as applicable.
"Option Holder": As defined in Section 3.18(a).
"Option Price": As defined in Section 3.18(a).
"Original Certificate Balance": With respect to any Class of
Certificates (other than the Class S, Class X and the Residual Certificates) and
the Class A-2SFL and Class A-JFL Regular Interests, the initial aggregate
principal amount thereof as of the Closing Date, in each case as specified in
the Preliminary Statement.
"Original Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interest, the initial principal amount thereof as of
the Closing Date, in each case as specified in the Preliminary Statement.
"Original Notional Amount": With respect to the Class X Notional
Amount, the initial Notional Amount thereof as of the Closing Date, as specified
in the Preliminary Statement.
"Other Pooling and Servicing Agreement": Any pooling and servicing
agreement or other agreement that creates a trust fund whose assets include any
000 Xxxxxxxxx Xxxxxx Pari Passu Companion Loan, any Skyline Portfolio Pari Passu
Companion Loan, the Solana Pari Passu Companion Loan, or any Americold Pool 2
Pari Passu Companion Loan.
"Other Securitization": As defined in Section 11.06.
"Other Servicer": Any servicer under an Other Pooling and Servicing
Agreement or other agreement related thereto.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Overland Park Trade Center AB Companion Loan": That certain loan
evidenced by a promissory B note, which is not an asset of the Trust Fund,
secured by the Mortgaged Property securing the Overland Park Trade Center
Mortgage Loan.
"Overland Park Trade Center Controlling Holder": The "Controlling
Holder" as defined in the Overland Park Trade Center Intercreditor Agreement.
"Overland Park Trade Center Intercreditor Agreement": That
certain Agreement Among Noteholders, dated as of February 1, 2007, by and
between Nomura Credit & Capital, Inc., as the A Note Holder, and Nomura
Credit & Capital, Inc., as the B Note Holder. The Overland Park Trade Center
Intercreditor Agreement relates to the Overland Park Trade Center Whole Loan.
"Overland Park Trade Center Mortgage Loan": That certain Mortgage
Loan identified on the Mortgage Loan Schedule as loan number 50.
"Overland Park Trade Center Whole Loan": The Overland Park Trade
Center Mortgage Loan and the Overland Park Trade Center AB Companion Loan.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the applicable Master Servicer or the Co-Trustee, as applicable, pursuant to
Section 4.03 or Section 7.05.
"P&I Advance Date": The Business Day immediately prior to each
Distribution Date.
"P&I Advance Determination Date": With respect to any
Distribution Date, the close of business on the related Determination Date.
"Pass-Through Rate": Any of the Class A-1 Pass-Through Rate, Class
A-1S Pass-Through Rate, the Class A-2 Pass-Through Rate, Class A-2S Pass-Through
Rate, Class A-2SFL Pass-Through Rate, Class A-2SFL Regular Interest Pass-Through
Rate, the Class A-3 Pass-Through Rate, the Class A-3S Pass-Through Rate, the
Class A-1A Pass-Through Rate, the Class A-M Pass-Through Rate, Class A-MS
Pass-Through Rate, the Class A-J Pass-Through Rate, the Class A-JFL Pass-Through
Rate, the Class A-JFL Regular Interest Pass-Through Rate, Class A-JS
Pass-Through Rate, the Class B Pass-Through Rate, the Class B-S Pass-Through
Rate, the Class C Pass-Through Rate, the Class C-S Pass-Through Rate, the Class
D Pass-Through Rate, the Class D-S Pass-Through Rate, the Class E Pass-Through
Rate, the Class E-S Pass-Through Rate, the Class F Pass-Through Rate, the Class
F-S Pass-Through Rate, the Class G Pass-Through Rate, the Class G-S Pass-Through
Rate, the Class H Pass-Through Rate, the Class H-S Pass-Through Rate, the Class
J Pass-Through Rate, the Class K Pass-Through Rate, the Class L Pass-Through
Rate, the Class M Pass-Through Rate, the Class N Pass-Through Rate, the Class P
Pass-Through Rate, the Class NR Pass-Through Rate or the Class X Pass-Through
Rate.
"PCAOB": The Public Company Accounting Oversight Board.
"Penalty Charges": With respect to any Mortgage Loan (or successor
REO Loan) or Companion Loan (or successor REO Loan), any amounts actually
collected thereon (or, in the case of a Companion Loan (or successor REO Loan
thereto), actually collected on such Companion Loan and allocated and paid on
such Companion Loan (or successor REO Loan) in accordance with the related
Intercreditor Agreement) that represent late payment charges or Default
Interest, other than a Yield Maintenance Charge, and other than any Excess
Interest.
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made with respect to
the related Class. With respect to any Regular Certificate, the percentage
interest is equal to the Denomination of such Certificate divided by the
Original Certificate Balance or Original Notional Amount, as applicable, of such
Class of Certificates as of the Closing Date. With respect to a Class S
Certificate and a Residual Certificate, the percentage interest is set forth on
the face thereof.
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Trustee,
if otherwise qualifying hereunder), regardless whether issued by the Depositor,
the applicable Master Servicer, the Special Servicer, the Trustee or any of
their respective Affiliates and having the required ratings, if any, provided
for in this definition and which shall not be subject to liquidation prior to
maturity:
(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States of
America, Xxxxxx Xxx, Xxxxxxx Mac or any agency or instrumentality of
the United States of America, the obligations of which are backed by
the full faith and credit of the United States of America that
mature in one (1) year or less from the date of acquisition;
provided that any obligation of, or guarantee by, Xxxxxx Mae or
Xxxxxxx Mac, other than an unsecured senior debt obligation of
Xxxxxx Mae or Xxxxxxx Mac, shall be a Permitted Investment only if
such investment would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each Rating
Agency to any Class of Certificates (or, insofar as there is then
outstanding any class of Companion Loan Securities that is then
rated by such Rating Agency, such class of securities) as evidenced
in writing;
(ii) time deposits, unsecured certificates of deposit, or
bankers' acceptances that mature in one (1) year or less after the
date of issuance and are issued or held by any depository
institution or trust company (including the Trustee) incorporated or
organized under the laws of the United States of America or any
State thereof and subject to supervision and examination by federal
or state banking authorities, so long as the commercial paper or
other short- term debt obligations of such depository institution or
trust company are rated in the highest rating categories of each
Rating Agency or such lower rating as would not result in the
downgrading, withdrawal or qualification of the then current rating
assigned by each Rating Agency to any Class of Certificates (or
insofar as there is then outstanding any class of Companion Loan
Securities that is then rated by such Rating Agency, such class of
securities) as evidenced in writing;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a
remaining maturity of one year or less and where such repurchase
obligation has been entered into with a depository institution or
trust company (acting as principal) described in clause (ii) above;
(iv) debt obligations bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States of America or any state thereof which mature in one (1) year
or less from the date of acquisition, which debt obligations are
rated in the highest rating categories of each Rating Agency or such
other rating as would not result in the downgrading, withdrawal or
qualification of the then current rating assigned by each Rating
Agency to any Class of Certificates (or insofar as there is then
outstanding any class of Companion Loan Securities that is then
rated by such Rating Agency, such class of securities) as evidenced
in writing; provided, however, that securities issued by any
particular corporation will not be Permitted Investments to the
extent that investment therein will cause the then outstanding
principal amount of securities issued by such corporation and held
in the accounts established hereunder to exceed 10% of the sum of
the aggregate principal balance and the aggregate principal amount
of all Permitted Investments in such accounts;
(v) commercial paper (including both non interest bearing
discount obligations and interest bearing obligations) of any
corporation or other entity organized under the laws of the United
States or any state thereof payable on demand or on a specified date
maturing in one (1) year or less from the date of acquisition
thereof and which is rated in the highest rating category of each
Rating Agency or such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then
assigned by each Rating Agency to any Class of Certificates (or
insofar as there is then outstanding any class of Companion Loan
Securities that is then rated by such Rating Agency, such class of
securities) as evidenced in writing;
(vi) money market funds, rated in the highest rating
categories of each Rating Agency;
(vii) the Xxxxx Fargo Prime Investment Money Market Fund so
long as it is rated by each Rating Agency in its highest money
market fund ratings category (or, if not rated by Xxxxx'x, Fitch or
S&P, otherwise acceptable to Xxxxx'x, Fitch or S&P, as applicable,
as confirmed in writing that such investment would not, in and of
itself, result in a downgrade, qualification or withdrawal of the
then current ratings assigned to the Certificates) (or insofar as
there is then outstanding any class of Companion Loan Securities
that is then rated by such Rating Agency, such class of securities);
and
(viii) any other demand, money market or time deposit,
obligation, security or investment, (a) with respect to which each
Rating Agency shall have confirmed in writing that such investment
will not result in a downgrade, qualification or withdrawal of the
then current rating assigned by such Rating Agency to any Class of
Certificates (or insofar as there is then outstanding any class of
Companion Loan Securities that is then rated by such Rating Agency,
such class of securities) as evidenced in writing and (b) which
qualifies as a "cash flow investment" pursuant to Section 860G(a)(6)
of the Code;
provided, however, that in each case if the investment is rated by S&P, (a) it
shall not have an "r" highlighter affixed to its rating from S&P, (b) it shall
have a predetermined fixed dollar of principal due at maturity that cannot vary
or change and (c) any such investment that provides for a variable rate of
interest must have an interest rate that is tied to a single interest rate index
plus a fixed spread, if any, and move proportionately with such index; and
provided further, however, that no such instrument shall be a Permitted
Investment (a) if such instrument evidences principal and interest payments
derived from obligations underlying such instrument and the interest payments
with respect to such instrument provide a yield to maturity at the time of
acquisition of greater than 120% of the yield to maturity at par of such
underlying obligations or (b) if such instrument may be redeemed at a price
below the purchase price; and provided, further, however, that no amount
beneficially owned by the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC (even if not yet deposited in the Trust) may be invested in
investments (other than money market funds) treated as equity interests for
federal income tax purposes, unless the applicable Master Servicer receives an
Opinion of Counsel, at its own expense, to the effect that such investment will
not adversely affect the status of the Upper-Tier REMIC, Middle-Tier REMIC or
the Lower-Tier REMIC. Permitted Investments that are subject to prepayment or
call may not be purchased at a price in excess of par.
"Permitted Transferee": Any Person or agent thereof who is a
Qualified Institutional Buyer other than a Disqualified Organization, an
ERISA Prohibited Holder or a Non-U.S. Person.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"PNC Bank": PNC Bank, National Association and its successors in
interest and assigns.
"Pool WAC Rate": With respect to any Distribution Date, the weighted
average of (x) the Group S WAC Rate, and (y) the Group R WAC Rate, in each case
weighted on the basis of the related Group Subordinate Amount.
"Prepayment Assumption": A "constant prepayment rate" of 0% used for
determining the accrual of original issue discount and market discount, if any,
and the amortization premium, if any, on the Certificates for federal income tax
purposes; provided it is assumed that each Mortgage Loan with an Anticipated
Repayment Date prepays on such date.
"Prepayment Interest Excess": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Due Date and prior to the following
Determination Date, the amount of interest (net of the related Servicing Fees
and any Excess Interest), to the extent collected from the related Mortgagor
(without regard to any prepayment premium or Yield Maintenance Charge actually
collected), that would have accrued at a rate per annum equal to the sum of (x)
the related Net Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee
Rate, on the amount of such prepayment from and after such Due Date and ending
on the date of such prepayment.
"Prepayment Interest Shortfall": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Determination Date (or, with respect to
each Mortgage Loan with a Due Date occurring after the related Determination
Date, the related Due Date) and prior to the following Due Date, the amount of
interest, to the extent not collected from the related Mortgagor (without regard
to any prepayment premium or Yield Maintenance Charge actually collected), that
would have accrued at a rate per annum equal to the sum of (x) the related Net
Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate, on the amount
of such Principal Prepayment during the period commencing on the date as of
which such Principal Prepayment was applied to such Mortgage Loan and ending on
such Due Date.
"Primary Collateral": With respect to any Crossed Loan, that portion
of the Mortgaged Property designated as directly securing such Crossed Loan and
excluding any Mortgaged Property as to which the related lien may only be
foreclosed upon by exercise of the cross-collateralization provisions of such
Crossed Loan.
"Primary Servicing Fee": The monthly fee payable by the applicable
Master Servicer from the Servicing Fee to each Initial Sub-Servicer, which
monthly fee accrues at the rate per annum specified as such in the Sub-Servicing
Agreement with such Initial Sub-Servicer.
"Prime Rate": The "Prime Rate" as published in the "Money Rates"
section of the New York City edition of The Wall Street Journal (or, if such
section or publication is no longer available, such other comparable publication
as determined by the Trustee in its reasonable discretion) as may be in effect
from time to time, or, if the "Prime Rate" no longer exists, such other
comparable rate (as determined by the Trustee in its reasonable discretion) as
may be in effect from time to time.
"Principal Distribution Amount": With respect to any Distribution
Date and any Class of Regular Certificates (other than the Class A-2SFL and
Class A-JFL Certificates) and the Class A-2SFL and Class A-JFL Regular
Interests, an amount equal to the sum of (a) the Principal Shortfall for such
Distribution Date, (b) the Scheduled Principal Distribution Amount for such
Distribution Date and (c) the Unscheduled Principal Distribution Amount for such
Distribution Date; provided, that the Principal Distribution Amount for any
Distribution Date shall be reduced by the amount of any reimbursements of (i)
Nonrecoverable Advances plus interest on such Nonrecoverable Advances that are
paid or reimbursed from principal collections on the Mortgage Loans in a period
during which such principal collections would have otherwise been included in
the Principal Distribution Amount for such Distribution Date and (ii)
Workout-Delayed Reimbursement Amounts that were paid or reimbursed from
principal collections on the Mortgage Loans in a period during which such
principal collections would have otherwise been included in the Principal
Distribution Amount for such Distribution Date (provided, that, in the case of
clause (i) and (ii) above, if any of the amounts that were reimbursed from
principal collections on the Mortgage Loans are subsequently recovered on the
related Mortgage Loan, such recovery will increase the Principal Distribution
Amount for the Distribution Date related to the period in which such recovery
occurs).
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
"Principal Shortfall": For any Distribution Date after the initial
Distribution Date with respect to the Mortgage Loans, the amount, if any, by
which (a) the related Principal Distribution Amount for the preceding
Distribution Date, exceeds (b) the aggregate amount distributed in respect of
principal on the Class A-1, Class A-1S, Class A-2, Class A-2S, Class A-3, Class
A-3S, Class A-1A, Class A-M, Class A-MS, Class A-J, Class A-JS, Class B, Class
B-S, Class C, Class C-S, Class D, Class D-S, Class E, Class E-S, Class F, Class
F-S, Class G, Class G-S, Class H, Class H-S, Class J, Class K, Class L, Class M,
Class N, Class P and Class NR Certificates and the Class A-2SFL and Class A-JFL
Regular Interests for such preceding Distribution Date pursuant to Section
4.01(a) on such preceding Distribution Date. The Principal Shortfall for the
initial Distribution Date will be zero.
"Privileged Person": Each Rating Agency, any of the Holders of each
Class of Certificates, each Underwriter, the Initial Purchaser, each Mortgage
Loan Seller and certain financial market publishers (which initially shall be
Bloomberg, L.P., Xxxxx, LLC and Intex Solutions LLC), any Companion Holder, each
party to this Agreement, the Swap Counterparty, the Directing Certificateholder,
any designee of the Depositor and any other Person who shall have provided the
Trustee with a certificate, using the form attached hereto as Exhibit U, which
form is available from the Trustee, certifying that such Person is a
Certificateholder, a beneficial owner or a prospective purchaser of a
Certificate.
"Prospectus": The Prospectus dated March 9, 2007, as supplemented by
the Prospectus Supplement dated March 26, 2007, relating to the offering of the
Offered Certificates.
"Purchase Option": As defined in Section 3.18(a)(ii).
"Purchase Option Notice": As defined in Section 3.18 (a)(iii).
"Purchase Price": With respect to any Mortgage Loan (or REO Loan) to
be purchased by a Mortgage Loan Seller pursuant to Section 6 of the related
Mortgage Loan Purchase Agreement, by the Majority Controlling Class
Certificateholder, the Special Servicer or the applicable Master Servicer
pursuant to Section 3.18(b), by the applicable Master Servicer, the Special
Servicer, the Holders of the Controlling Class or the Holders of the Class LR
Certificates pursuant to Section 9.01 or to be otherwise sold pursuant to
Section 3.18(d), a price equal to:
(i) the outstanding principal balance of such Mortgage Loan
(or related REO Loan) as of the date of purchase; plus
(ii) all accrued and unpaid interest on such Mortgage Loan (or
the related REO Loan) at the related Mortgage Rate in effect from
time to time (exclusive of Default Interest and Excess Interest) to
but not including the Due Date immediately preceding the
Determination Date for the related Distribution Date as to which
such Purchase Price is included in the Available Distribution
Amount; plus
(iii) all related Servicing Advances that are unreimbursed out
of collections from the Mortgage Loan and accrued and unpaid
interest on related Advances at the Reimbursement Rate, and any
Special Servicing Fees whether paid or then owing allocable to such
Mortgage Loan and all additional Trust Fund expenses in respect of
such Mortgage Loan; plus
(iv) if such Mortgage Loan (or REO Loan) is being purchased by
a Mortgage Loan Seller pursuant to Section 6 of the applicable
Mortgage Loan Purchase Agreement, to the extent not otherwise
included pursuant to clause (iii), all reasonable out-of-pocket
expenses reasonably incurred or to be incurred by the applicable
Master Servicer, the Special Servicer, the Depositor and the Trustee
in respect of the Breach or Defect giving rise to the repurchase
obligation, including any expenses arising out of the enforcement of
the repurchase obligation, including, without limitation, all legal
fees and expenses relating to the enforcement of such repurchase
obligations; plus
(v) Liquidation Fees, if any, payable with respect to such
Mortgage Loan.
With respect to any REO Property to be sold pursuant to Section 3.18(c),
"Purchase Price" shall mean the amount calculated in accordance with the
preceding sentence in respect of the related REO Loan. With respect to any REO
Property to be purchased or sold pursuant to Section 3.18(b) that relates to a
Serviced Whole Loan, the term "REO Loan" shall mean the REO Loan with respect to
both the related Mortgage Loan and the related Companion Loan(s).
Notwithstanding the foregoing, with respect to any AB Whole Loan, the "Purchase
Price" to be paid by the holder of the related Companion Loan shall be the
"Defaulted Mortgage Loan Purchase Price" specified in the related Intercreditor
Agreement.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer": A "qualified institutional
buyer" as defined in Rule 144A under the Act.
"Qualified Insurer": (i) With respect to any Mortgage Loan, REO Loan
or REO Property, an insurance company or security or bonding company qualified
to write the related Insurance Policy in the relevant jurisdiction with an
insurance financial strength rating of at least "A3" by Xxxxx'x, "A-" by S&P and
"A-" by Fitch (or, if not rated by one or two of such Rating Agencies, then at
least "A-" by two other nationally recognized insurance rating organizations
(which may include A.M. Best Company or one of the other Rating Agencies)) and
(ii) with respect to the fidelity bond and errors and omissions Insurance Policy
required to be maintained pursuant to Section 3.07(c), except as set forth in
Section 3.07(c), an insurance company that has an insurance financial strength
rating (in the case of ratings by Xxxxx'x) or a claims paying ability (in the
case of ratings by S&P and Fitch) rated no lower than two ratings below the
rating assigned to the then highest rated outstanding Certificate, but in no
event lower than "A3" by Xxxxx'x, "A-" by S&P and "A-" by Fitch (or, if not
rated by one of such Rating Agencies, then at least "A" by two other nationally
recognized statistical rating organizations (which may include the other Rating
Agencies)) or, in the case of clauses (i) and (ii), such other rating as each
Rating Agency shall have confirmed in writing will not cause such Rating Agency
to downgrade, qualify or withdraw the then current rating assigned by such
Rating Agency to any Class of Certificates (or insofar as there is then
outstanding any class of Companion Loan Securities that is then rated by such
Rating Agency, such class of securities) as evidenced in writing; provided,
however, that an insurance carrier shall be deemed to have the applicable
financial strength or claims-paying ability ratings set forth above if the
obligations of such insurance carrier under the related insurance policy are
guaranteed or backed in writing by an entity that has long-term unsecured debt
obligations that are rated not lower than the ratings set forth above or
claims-paying ability ratings that are not lower than the ratings set forth
above.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, whether or not received, not in excess of
the Stated Principal Balance of the deleted Mortgage Loan as of the Due Date in
the calendar month during which the substitution occurs; (ii) have a Mortgage
Rate not less than the Mortgage Rate of the deleted Mortgage Loan; (iii) have
the same Due Date as and grace period no longer than that of the deleted
Mortgage Loan; (iv) accrue interest on the same basis as the deleted Mortgage
Loan (for example, on the basis of a 360-day year consisting of twelve 30-day
months); (v) have a remaining term to stated maturity not greater than, and not
more than two years less than, the remaining term to stated maturity of the
deleted Mortgage Loan; (vi) have a then current loan-to-value ratio not higher
than that of the deleted Mortgage Loan as of the Closing Date and a current
loan-to-value ratio not higher than the then current loan-to-value ratio of the
deleted Mortgage Loan, in each case using the "value" as determined using an MAI
appraisal; (vii) comply (except in a manner that would not be adverse to the
interests of the Certificateholders) as of the date of substitution with all of
the representations and warranties set forth in the applicable Mortgage Loan
Purchase Agreement; (viii) have an environmental report that indicates no
material adverse environmental conditions with respect to the related Mortgaged
Property and which will be delivered as a part of the related Servicing File;
(ix) have a then current debt service coverage ratio of not less than the
original debt service coverage ratio of the deleted Mortgage Loan as of the
Closing Date and a current debt service coverage ratio of not less than the
current debt service coverage ratio of the deleted Mortgage Loan; (x) constitute
a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of
the Code as evidenced by an Opinion of Counsel (provided at the applicable
Mortgage Loan Seller's expense); (xi) not have a maturity date or an
amortization schedule after the date two years prior to the Rated Final
Distribution Date; (xii) have comparable prepayment restrictions to those of the
deleted Mortgage Loan; (xiii) not be substituted for a deleted Mortgage Loan
unless the Trustee has received prior confirmation in writing by each Rating
Agency that such substitution will not result in the withdrawal, downgrade, or
qualification of the rating assigned by the Rating Agency to any Class of
Certificates then rated by the Rating Agency (the cost, if any, of obtaining
such confirmation to be paid by the applicable Mortgage Loan Seller); (xiv) have
been approved by the Directing Certificateholder; (xv) prohibit defeasance
within two years of the Closing Date; (xvi) not be substituted for a deleted
Mortgage Loan if it would result in the termination of the REMIC status of any
of the REMICs established under this Agreement or the imposition of tax on any
of such REMICs other than a tax on income expressly permitted or contemplated to
be imposed by the terms of this Agreement, as determined by an Opinion of
Counsel; (xvii) have an engineering report with respect to the related Mortgaged
Property that will be delivered as a part of the related Servicing File, and
(xviii) be current in the payment of all scheduled payments of principal and
interest then due. In the event that more than one mortgage loan is substituted
for a deleted Mortgage Loan, then the amounts described in clause (i) shall be
determined on the basis of aggregate Stated Principal Balances and each such
proposed Qualified Substitute Mortgage Loan shall individually satisfy each of
the requirements specified in (ii) through (xviii) except that the rates
described in clause (ii) above and the remaining term to stated maturity
referred to in clause (v) above shall be determined on a weighted average basis,
provided that no individual Mortgage Rate (net of the Servicing Fee Rate and the
Trustee Fee Rate) shall be lower than the highest fixed Pass-Through Rate (and
not subject to a cap equal to the Weighted Average Net Mortgage Rate) of any
class of Regular Certificates (other than the Class A-2SFL Certificates and the
Class A-JFL Certificates) or the Class A-2SFL Regular Interest or the Class
A-JFL Regular Interest having a principal balance then outstanding. When a
Qualified Substitute Mortgage Loan is substituted for a deleted Mortgage Loan,
(i) the applicable Mortgage Loan Seller shall certify that the Mortgage Loan
meets all of the requirements of the above definition and shall send such
certification to the Trustee and the Directing Certificateholder and (ii) such
Qualified Substitute Mortgage Loan shall become part of the same Loan Group and
Servicing Group as the deleted Mortgage Loan.
"Rated Final Distribution Date": As to each Class of
Certificates, January 15, 2049.
"Rating Agency": Each of Xxxxx'x and Fitch, or their successors in
interest, and, if applicable, any rating agency rating the Companion Loan
Securities. If neither such rating agency nor any successor remains in
existence, "Rating Agency" shall be deemed to refer to such nationally
recognized statistical rating agency or other comparable Person designated by
the Depositor, notice of which designation shall be given to the Trustee, the
Special Servicer and the Master Servicers, and specific ratings of Xxxxx'x and
Fitch herein referenced shall be deemed to refer to the equivalent ratings of
the party so designated.
"Rating Agency Trigger Event": The reduction of the related Swap
Counterparty's long-term ratings below "A3" or "A-" by Xxxxx'x or Fitch,
respectively.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registrar Office": As defined in Section 5.02(a).
"Regular Certificate": Any of the Class A, Class A-S, Class A-M,
Class A-MS, Class A-J, Class A-JFL, Class A-JS, Class B, Class B-S, Class C,
Class C-S, Class D, Class D-S, Class E, Class E-S, Class F, Class F-S, Class G,
Class G-S, Class H, Class H-S, Class J, Class K, Class L, Class M, Class N,
Class P, Class NR and Class X Certificates.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
"Regulation AB Companion Loan Securitization": As defined in
Section 11.15.
"Regulation AB Servicing Officer": Any officer or employee of the
applicable Master Servicer or the Special Servicer, as applicable, involved in,
or responsible for, the administration and servicing of the Mortgage Loans or
Companion Loans, or this Agreement and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's or employee's knowledge of and familiarity with the particular
subject, and, in the case of any certification required to be signed by a
Servicing Officer, such an officer or employee whose name and specimen signature
appears on a list of servicing officers furnished to the Trustee by such Master
Servicer or the Special Servicer, as applicable, as such list may from time to
time be amended.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Book-Entry Certificates": The Regular Certificates
sold in offshore transactions in reliance on Regulation S and represented by one
or more Book-Entry Certificates deposited with the Trustee as custodian for the
Depository.
"Regulation S Investor": With respect to a transferee of a
Regulation S Book-Entry Certificate, a transferee that acquires such Certificate
pursuant to Regulation S.
"Regulation S Transfer Certificate": A certificate substantially in
the form of Exhibit I-1 or Exhibit I-2 hereto, as applicable.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the Prime Rate.
"Related Certificates," "Related Uncertificated Middle-Tier
Interests" and "Related Components of Class X Certificates": For each of the
following Classes of Certificates, the Class A-2SFL Regular Interest or the
Class A-JFL Regular Interest, as applicable, the related Class of Uncertificated
Middle-Tier Interests and the related Components of Class X Certificates; for
the following Components of the Class X Certificates, the related Class of
Uncertificated Middle-Tier Interests and the related Class of Certificates, the
Class A-2SFL Regular Interest or the Class A-JFL Regular Interest, as
applicable, set forth below; and for the following Classes of Uncertificated
Middle-Tier Interests, the related Components of the Class X Certificates and
the related Class of Certificates or the Class A-2SFL Regular Interest or the
Class A-JFL Regular Interest, as applicable, set forth below:
Related Uncertificated Related Components of
Related Certificate Middle-Tier Interest Class X Certificates
----------------------------- ------------------------------------- ---------------------
Class A-1 Certificate Class MA-1 Uncertificated Interest XA-1
Class A-1S Certificate Class MA-1S Uncertificated Interest XA-1S
Class A-1A Certificate Class MA-1A Uncertificated Interest XA-1A
Class A-2 Certificate Class MA-2 Uncertificated Interest XA-2
Class A-2S Certificate Class MA-2S Uncertificated Interest XA-2S
Class A-2SFL Regular Interest Class MA-2SFL Uncertificated Interest XA-2SFL
Class A-3 Certificate Class MA-3 Uncertificated Interest XA-3
Class A-3S Certificate Class MA-3S Uncertificated Interest XA-3S
Class A-M Certificate Class MA-M Uncertificated Interest XA-M
Class A-MS Certificate Class MA-MS Uncertificated Interest XA-MS
Class A-J Certificate Class MA-J Uncertificated Interest XA-J
Class A-JFL Regular Interest Class MA-JFL Uncertificated Interest XA-JFL
Class A-JS Certificate Class MA-JS Uncertificated Interest XA-JS
Class B Certificate Class MB Uncertificated Interest XB
Class B-S Certificate Class MB-S Uncertificated Interest XB-S
Class C Certificate Class MC Uncertificated Interest XC
Class C-S Certificate Class MC-S Uncertificated Interest XC-S
Class D Certificate Class MD Uncertificated Interest XD
Class D-S Certificate Class MD-S Uncertificated Interest XD-S
Class E Certificate Class ME Uncertificated Interest XE
Class E-S Certificate Class ME-S Uncertificated Interest XE-S
Class F Certificate Class MF Uncertificated Interest XF
Class F-S Certificate Class MF-S Uncertificated Interest XF-S
Class G Certificate Class MG Uncertificated Interest XG
Class G-S Certificate Class MG-S Uncertificated Interest XG-S
Class H Certificate Class MH Uncertificated Interest XH
Class H-S Certificate Class MH-S Uncertificated Interest XH-S
Class J Certificate Class MJ Uncertificated Interest XJ
Class K Certificate Class MK Uncertificated Interest XK
Class L Certificate Class ML Uncertificated Interest XL
Class M Certificate Class MM Uncertificated Interest XM
Class N Certificate Class MN Uncertificated Interest XN
Class P Certificate Class MP Uncertificated Interest XP
Class NR Certificate Class MNR Uncertificated Interest XNR
"REMIC": A "real estate mortgage investment conduit" as defined
in Section 860D of the Code (or any successor thereto).
"REMIC Administrator": The Trustee or any REMIC administrator
appointed pursuant to Section 10.04.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created
and maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "X.X.
Xxxxxx Company, Inc., or the applicable successor Special Servicer, as Special
Servicer, for the benefit of Xxxxx Fargo Bank, N.A., as trustee, in trust for
registered Holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2007-LDP10 Commercial Mortgage Pass-Through Certificates, Series 2007-LDP10, REO
Account." Any such account or accounts shall be an Eligible Account.
"REO Acquisition": The acquisition for federal income tax purposes
of any REO Property pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan or Companion Loan deemed for purposes
hereof to be outstanding with respect to each REO Property. Each REO Loan shall
be deemed to be outstanding for so long as the related REO Property (or
beneficial interest therein, in the case of the Non-Serviced Mortgage Loans)
remains part of the Trust Fund and provides for Assumed Scheduled Payments on
each Due Date therefor, and otherwise has the same terms and conditions as its
predecessor Mortgage Loan or Companion Loan, including, without limitation, with
respect to the calculation of the Mortgage Rate in effect from time to time
(such terms and conditions to be applied without regard to the default on such
predecessor Mortgage Loan or Companion Loan). Each REO Loan shall be deemed to
have an initial outstanding principal balance and Stated Principal Balance equal
to the outstanding principal balance and Stated Principal Balance, respectively,
of its predecessor Mortgage Loan or Companion Loan as of the date of the related
REO Acquisition. All amounts due and owing in respect of the predecessor
Mortgage Loan or Companion Loan as of the date of the related REO Acquisition,
including, without limitation, accrued and unpaid interest, shall continue to be
due and owing in respect of a REO Loan. All amounts payable or reimbursable to
the applicable Master Servicer, the Special Servicer, the Co-Trustee or the
Trustee, as applicable, in respect of the predecessor Mortgage Loan or Companion
Loan as of the date of the related REO Acquisition, including, without
limitation, any unpaid Special Servicing Fees and Servicing Fees and any
unreimbursed Advances, additional Trust Fund expenses, together with any
interest accrued and payable to the applicable Master Servicer or the
Co-Trustee, as applicable, in respect of such Advances in accordance with
Section 3.03(d) or Section 4.03(d), shall continue to be payable or reimbursable
to the applicable Master Servicer or the Co-Trustee, as applicable, in respect
of an REO Loan. In addition, Unliquidated Advances and Nonrecoverable Advances
with respect to such REO Loan, in each case, that were paid from collections on
the Mortgage Loans and resulted in principal distributed to the
Certificateholders being reduced as a result of the first proviso in the
definition of "Principal Distribution Amount", "Loan Group S Principal
Distribution Amount", "Loan Group R-1 Principal Distribution Amount", "Loan
Group R-2 Principal Distribution Amount" or "Loan Group R Principal Distribution
Amount" shall be deemed outstanding until recovered. Collections in respect of
each REO Loan (exclusive of the amounts to be applied to the payment of, or to
be reimbursed to the applicable Master Servicer or the Special Servicer for the
payment of unreimbursed Advances and interest thereon and the costs of
operating, managing, selling, leasing and maintaining the related REO Property)
shall be treated: first, as a recovery of accrued and unpaid interest on such
REO Loan at the related Mortgage Rate in effect from time to time to, but not
including, the Due Date in the Due Period of receipt (exclusive of any portion
that constitutes Excess Interest); second, as a recovery of Unliquidated
Advances with respect to such REO Loan; third, as a recovery of principal of
such REO Loan to the extent of its entire unpaid principal balance; fourth, as a
recovery of Nonrecoverable Advances with respect to such REO Loan; and fifth, in
accordance with the Servicing Standards of the applicable Master Servicer, as a
recovery of any other amounts due and owing in respect of such REO Loan,
including, without limitation, (i) Penalty Charges, (ii) Yield Maintenance
Charges and (iii) Excess Interest and other amounts, in that order; provided
that if any Non-Serviced Mortgage Loan and the related Companion Loan comprising
the related Whole Loan become REO Loans, the treatment of the foregoing amounts
with respect to that Whole Loan shall be subject to the terms of the related
Intercreditor Agreement and the related Non-Serviced Pooling Agreement, and
provided, further that if any Serviced Mortgage Loan and the related Companion
Loan(s) comprising the related Serviced Whole Loan become REO Loans, the
treatment of the foregoing amounts with respect to such Serviced Whole Loan
shall be subject to the terms of the applicable Intercreditor Agreement and this
Agreement.
"REO Loan Accrual Period": With respect to any REO Loan and any Due
Date therefor, the one-month period immediately preceding such Due Date.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of, and in the name of, the Trustee or a nominee thereof for
the benefit of the Certificateholders (and the related Companion Holder, subject
to the related Intercreditor Agreement with respect to a Mortgaged Property
securing a Serviced Whole Loan) and the Trustee (as holder of the Class A-2SFL
Regular Interest, the Class A-JFL Regular Interest and the Uncertificated
Middle-Tier Interests) (and also including, if applicable, the Trust Fund's
beneficial interest in (i) the Skyline Portfolio Mortgaged Property or the
Solana Mortgaged Property acquired by the BACM 2007-1 Special Servicer on behalf
of, and in the name of, the BACM 2007-1 Trustee or a nominee thereof for the
benefit of the certificateholders under the BACM 2007-1 Trust and (ii) the
Americold Pool 2 Mortgaged Property acquired by the JPMCC 2007-CIBC18 Special
Servicer on behalf of, and in the name of, the JPMCC 2007-CIBC18 Trustee or a
nominee thereof for the benefit of the certificateholders under the JPMCC
2007-CIBC18 Trust) through foreclosure, acceptance of a deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in connection with
the default or imminent default of a Mortgage Loan. References herein to the
Special Servicer acquiring, maintaining, managing, inspecting, insuring, selling
or reporting any Appraisal Reductions and Final Recovery Determinations with
respect to an "REO Property", shall not include the Trust Fund's beneficial
interest in the Skyline Portfolio Mortgaged Property, the Solana Mortgaged
Property and the Americold Pool 2 Mortgaged Property. For the avoidance of
doubt, REO Property, to the extent allocable to a Companion Loan, shall not be
an asset of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC or the
Upper-Tier REMIC.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property (other than the Skyline
Portfolio Mortgaged Property, the Solana Mortgaged Property and the Americold
Pool 2 Mortgaged Property).
"Reportable Event": As defined in Section 11.07.
"Reporting Servicer": Each Master Servicer, the Special Servicer,
the Co-Trustee, the Trustee or a Servicing Function Participant engaged by
any such party, as the case may be.
"Request for Release": A release signed by a Servicing Officer of
the applicable Master Servicer or the Special Servicer, as applicable, in the
form of Exhibit E attached hereto.
"Residual Certificate": Any Class R Certificate, Class MR
Certificate or Class LR Certificate issued, authenticated and delivered
hereunder.
"Responsible Officer": When used with respect to the initial Trustee
or Co-Trustee, any Vice President, Assistant Vice-President, Assistant Secretary
or corporate trust officer in the corporate trust department of the Trustee or
Co-Trustee, and with respect to any successor Trustee or Co-Trustee, any officer
or assistant officer in the corporate trust department of the successor Trustee
or Co-Trustee or any other officer of the successor Trustee or Co-Trustee
customarily performing functions similar to those performed by any of the above
designated officers to whom a particular matter is referred by the Trustee or
Co-Trustee because of such officer's knowledge of and familiarity with the
particular subject.
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which Certificates are first
offered to Persons other than the Initial Purchasers and any other distributor
(as such term is defined in Regulation S) of the Certificates and (b) the
Closing Date.
"Retained Fee Rate": An amount equal to 0.005% per annum.
"Revised Rate": With respect to those Mortgage Loans on the Mortgage
Loan Schedule indicated as having a revised rate, the increased interest rate
after the Anticipated Repayment Date (in the absence of a default) for each
applicable Mortgage Loan, as calculated and as set forth in the related Mortgage
Loan.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Book-Entry Certificate": With respect to any Class of
Certificates offered and sold in reliance on Rule 144A, a single, permanent
Book-Entry Certificate, in definitive, fully registered form without interest
coupons.
"S&P": Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc., and its successors in interest. If S&P or any successor
remains in existence, "S&P" shall be deemed to refer to such other nationally
recognized statistical rating agency or other comparable Person designated by
the Depositor, notice of which designation shall be given to the Trustee, the
Master Servicers and the Special Servicer and specific ratings of S&P herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated.
"Xxxxxxxx-Xxxxx Act": means the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
"Xxxxxxxx-Xxxxx Certification": As defined in
Section 11.05(a)(iv).
"Scheduled Principal Distribution Amount": With respect to any
Distribution Date and the Mortgage Loans, the aggregate of the principal
portions of (a) all Monthly Payments (excluding Balloon Payments and Excess
Interest) due in respect of such Mortgage Loans during or, if and to the extent
not previously received or advanced pursuant to Section 4.03 in respect of a
preceding Distribution Date, prior to, the related Due Period, and all Assumed
Scheduled Payments for the related Due Period, in each case to the extent either
(i) paid by the Mortgagor as of the Determination Date (or, with respect to each
Mortgage Loan with a Due Date occurring or a grace period ending after the
related Determination Date, the related Due Date or last day of such grace
period, as applicable, to the extent received by the Master Servicer as of the
Business Day preceding the related P&I Advance Date) (and not previously
distributed to Certificateholders) or (ii) advanced by the applicable Master
Servicer or the Co-Trustee, as applicable, pursuant to Section 4.03 in respect
of such Distribution Date, and (b) all Balloon Payments to the extent received
on or prior to the related Determination Date (or, with respect to each Mortgage
Loan with a Due Date occurring or a grace period ending after the related
Determination Date, the related Due Date or last day of such grace period, as
applicable, to the extent received by the applicable Master Servicer as of the
Business Day preceding the related P&I Advance Date), and to the extent not
included in clause (a) above.
"Securities Act": The Securities Act of 1933, as it may be amended
from time to time.
"Security Agreement": With respect to any Mortgage Loan, any
security agreement or equivalent instrument, whether contained in the related
Mortgage or executed separately, creating in favor of the holder of such
Mortgage a security interest in the personal property constituting security for
repayment of such Mortgage Loan.
"Service(s)" or "Servicing": 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 Mortgage Loan": Each of the 000 Xxxxxxxxx Xxxxxx
Mortgage Loan and the AB Mortgage Loans.
"Serviced Pari Passu Companion Loan": Each of the 000 Xxxxxxxxx
Xxxxxx Pari Passu Companion Loans.
"Serviced Securitized Companion Loan": Any Companion Loan that is a
component of a Serviced Whole Loan, if and for so long as each such companion
mortgage loan is included in a Regulation AB Companion Loan Securitization.
"Serviced Whole Loan": Each of the AB Whole Loans and the 000
Xxxxxxxxx Xxxxxx Whole Loan.
"Serviced Whole Loan Controlling Holder": With respect to the
Overland Park Trade Center Whole Loan, the Overland Park Trade Center
Controlling Holder and with respect to the 000 Xxxxxxxxx Xxxxxx Whole Loan, the
000 Xxxxxxxxx Xxxxxx Controlling Holder.
"Serviced Whole Loan Intercreditor Agreement": Each of the 000
Xxxxxxxxx Xxxxxx Intercreditor Agreement, the Anchor Government Assets
Intercreditor Agreement, the Timberline Apartments Intercreditor Agreement, the
Turtle Creek Park Intercreditor Agreement and the Overland Park Trade Center
Intercreditor Agreement.
"Serviced Whole Loan Remittance Date": With respect to each Serviced
Whole Loan, the date payments are required to be made to the holder of the
related Companion Loan under the related Serviced Whole Loan Intercreditor
Agreement or, if no such "remittance date" is specified, the P&I Advance Date
(but in no event earlier than 1 Business Day following receipt).
"Servicing Account": The account or accounts created and
maintained pursuant to Section 3.03.
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses (including attorneys' fees and expenses and fees
of real estate brokers) incurred by the applicable Master Servicer, the Special
Servicer or the Co-Trustee, as applicable, in connection with the servicing and
administering of (a) a Mortgage Loan (other than the Non-Serviced Mortgage
Loans) (and, in the case of a Serviced Whole Loan, the related Companion
Loan(s)) in respect of which a default, delinquency or other unanticipated event
has occurred or as to which a default is reasonably foreseeable or (b) an REO
Property, including (in the case of each of such clause (a) and clause (b)), but
not limited to, (x) the cost of (i) compliance with the applicable Master
Servicer's obligations set forth in Section 3.03(c), (ii) the preservation,
restoration and protection of a Mortgaged Property, (iii) obtaining any
Insurance and Condemnation Proceeds or any Liquidation Proceeds of the nature
described in clauses (i)-(iv) of the definition of "Liquidation Proceeds," (iv)
any enforcement or judicial proceedings with respect to a Mortgaged Property,
including foreclosures and (v) the operation, leasing, management, maintenance
and liquidation of any REO Property and (y) any amount specifically designated
herein to be paid as a "Servicing Advance". Notwithstanding anything to the
contrary, "Servicing Advances" shall not include allocable overhead of the
applicable Master Servicer or the Special Servicer, such as costs for office
space, office equipment, supplies and related expenses, employee salaries and
related expenses and similar internal costs and expenses or costs and expenses
incurred by any such party in connection with its purchase of a Mortgage Loan or
REO Property.
"Servicing Criteria": The criteria set forth in paragraph (d) of
Item 1122 of Regulation AB as such may be amended from time to time and which as
of the Closing Date are listed on Exhibit W hereto.
"Servicing Fee": With respect to each Mortgage Loan, Companion Loan
and REO Loan, the fee payable to the applicable Master Servicer pursuant to the
first paragraph of Section 3.11(a).
"Servicing Fee Amount": With respect to the applicable Master
Servicer and any date of determination, the aggregate of the products obtained
by multiplying, for each Mortgage Loan, (a) the Stated Principal Balance of such
Mortgage Loan as of the end of the immediately preceding Due Period and (b) the
difference between the Servicing Fee Rate for such Mortgage Loan over the
servicing fee rate (if any) applicable to such Mortgage Loan as specified in any
Sub-Servicing Agreement related to such Mortgage Loan. With respect to each
Sub-Servicer and any date of determination, the aggregate of the products
obtained by multiplying, for each Mortgage Loan serviced by such Sub-Servicer,
(a) the Stated Principal Balance of such Mortgage Loan as of the end of the
immediately preceding Due Period and (b) the servicing fee rate specified in the
related Sub-Servicing Agreement for such Mortgage Loan.
"Servicing Fee Rate": With respect to each Mortgage Loan and REO
Loan (and with respect to the Skyline Portfolio Mortgage Loan and the Solana
Mortgage Loan, solely for the purposes of calculating the Administrative Cost
Rate under this Agreement and not for calculating the Servicing Fee), a rate
equal to the per annum rate set forth on the Mortgage Loan Schedule under the
heading "Servicing Fee Rate," in each case computed on the basis of the Stated
Principal Balance of the related Mortgage Loan. With respect to each Companion
Loan, the rate payable to the applicable Master Servicer with respect to the
related Mortgage Loan to the extent not inconsistent with the related
Intercreditor Agreement. Other than for purposes of calculating the
Administrative Cost Rate under this Agreement, the "Servicing Fee Rate" (to be
used to calculate the Servicing Fee payable to the applicable Master Servicer
hereunder) with respect to the Skyline Portfolio Mortgage Loan and the Solana
Mortgage Loan is 0.01% per annum, (and the BACM 2007-1 Master Servicer and the
primary servicer of the Solana Whole Loan will be entitled to a primary
servicing fee with respect to the Skyline Portfolio Mortgage Loan and the Solana
Mortgage Loan, respectively, based on a rate of 0.01% per annum). With respect
to each Companion Loan set forth below, the per annum rate is as set forth
opposite its name.
Companion Loan Rate
------------------------------------------------- --------
Overland Park Trade Center AB Companion Loan 0.00%(1)
Anchor Government Assets AB Companion Loan 0.08%(2)
Timberline Aparments AB Companion Loan 0.08%(2)
Turtle Creek Park AB Companion Loan 0.08%(2)
000 Xxxxxxxxx Xxxxxx X0 Xxxx Xxxxx Companion Loan 0.01%
000 Xxxxxxxxx Xxxxxx X0 Xxxx Xxxxx Companion Loan 0.01%
000 Xxxxxxxxx Xxxxxx X0 Xxxx Xxxxx Companion Loan 0.01%
------------
(1) Subject to adjustment upon funding of the related B-note, to be agreed upon
between the applicable Master Servicer and the related Companion Holder.
(2) Subject to adjustment, 0.05% upon securitization in an Other Securitization.
"Servicing File": Shall mean with respect to each Mortgage Loan
other than the Non-Serviced Mortgage Loans, a photocopy of all items required to
be included in the Mortgage File, together with each of the following, to the
extent such items were actually delivered to the related Mortgage Loan Seller
with respect to a Mortgage Loan and (to the extent that the identified documents
existed on or before the Closing Date and the applicable reference to Servicing
File relates to any period after the Closing Date) delivered by the related
Mortgage Loan Seller to the applicable Master Servicer: (i) a copy of any
engineering reports, environmental reports or property condition reports
received by the related Mortgage Loan Seller with respect to the related
Mortgaged Property; (ii) other than with respect to a hotel property (except
with respect to tenanted commercial space within a hotel property), copies of a
rent roll and, for any office, retail, industrial or warehouse property, a copy
of all leases and estoppels and subordination and non-disturbance agreements
delivered to the Mortgage Loan Seller; (iii) copies of related financial
statements or operating statements; (iv) all legal opinions (excluding
attorney-client communications between any Mortgage Loan Seller and its counsel
that are privileged communications or constitute legal or other due diligence
analyses), Mortgagor's certificates and certificates of hazard insurance and/or
hazard insurance policies or other applicable insurance policies, if any,
delivered in connection with the closing of the Mortgage Loan; (v) a copy of the
Appraisal for the related Mortgaged Property(ies); (vi) the documents that were
delivered by or on behalf of the Mortgagor, which documents were required to be
delivered in connection with the closing of such Mortgage Loan; (vii) for any
Mortgage Loan that the related Mortgaged Property is leased to a single tenant,
a copy of the lease; and (viii) a copy of any property management agreement.
"Servicing Function Participant": Any Additional Servicer,
Sub-Servicer, Subcontractor or any other Person, other than any Master Servicer,
the Special Servicer, the Co-Trustee and the Trustee that is performing
activities that address the Servicing Criteria, unless such Person's activities
relate only to 5% or less of the Mortgage Loans by unpaid principal balance as
of any date of determination in accordance with Article XI.
"Servicing Group": Servicing Group A or Servicing Group B, as
applicable.
"Servicing Group A": Collectively, all of the Mortgage Loans that
are Group A Mortgage Loans and any successor REO Loans with respect thereto.
"Servicing Group B": Collectively, all of the Mortgage Loans that
are Group B Mortgage Loans and any successor REO Loans with respect thereto.
"Servicing Officer": Any officer and/or employee of the applicable
Master Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans (and, in the case of any
Serviced Mortgage Loan, the related Companion Loan) whose name and specimen
signature appear on a list of servicing officers furnished by the applicable
Master Servicer and the Special Servicer to the Trustee, the Co-Trustee and the
Depositor on the Closing Date as such list may be amended from time to time
thereafter.
"Servicing-Released Bid": As defined in Section 7.01(c).
"Servicing-Retained Bid": As defined in Section 7.01(c).
"Servicing Standards": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Mortgage Loan (other
than the Non-Serviced Mortgage Loans) or Companion Loan, the occurrence of any
of the following events:
(i) with respect to a Mortgage Loan or Companion Loan that is
not a Balloon Mortgage Loan, (a) a payment default shall have
occurred at its original Maturity Date, or (b) if the original
Maturity Date of such Mortgage Loan or Companion Loan has been
extended, a payment default shall have occurred at such extended
Maturity Date; or
(ii) with respect to each Mortgage Loan or Companion Loan that
is a Balloon Mortgage Loan, the Balloon Payment is delinquent;
provided that if the Mortgagor continues to make the Assumed
Scheduled Payment and delivers to the Special Servicer prior to the
date such Balloon Payment was due a bona fide written refinancing
commitment that provides that such refinancing will occur within 60
days of the Balloon Payment Due Date and is acceptable in form and
substance to the Special Servicer, a Servicing Transfer Event will
not occur until the earlier of (x) 60 days following the Due Date of
the Balloon Payment and (y) the date on which the refinancing
commitment terminates; or
(iii) any Monthly Payment (other than a Balloon Payment) is
more than 60 days delinquent; or
(iv) the applicable Master Servicer makes a judgment, or
receives from the Special Servicer a written determination of the
Special Servicer concurred in by the Directing Certificateholder
that a payment default is imminent and is not likely to be cured by
the related Mortgagor within 60 days; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency
or similar law, or the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up
or liquidation of its affairs, is entered against the related
Mortgagor; provided, that if such decree or order is discharged or
stayed within 60 days of being entered, or if, as to a bankruptcy,
the automatic stay is lifted within 60 days of a filing for relief
or the case is dismissed, upon such discharge, stay, lifting or
dismissal such Mortgage Loan or Companion Loan shall no longer be a
Specially Serviced Mortgage Loan (and no Special Servicing Fees,
Workout Fees or Liquidation Fees will be payable with respect
thereto and any such fees actually paid shall be reimbursed by the
Special Servicer); or
(vi) the related Mortgagor shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to such Mortgagor or of or
relating to all or substantially all of its property; or
(vii) the related Mortgagor shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(viii) a default of which the applicable Master Servicer or
the Special Servicer, as the case may be, has notice (other than a
failure by such Mortgagor to pay principal or interest) and which
the applicable Master Servicer or Special Servicer (in the case of
the Special Servicer, with Directing Certificateholder consent)
determines in its good faith reasonable judgment may materially and
adversely affect the interests of the Certificateholders or the
holders of the related Companion Loan, if applicable, has occurred
and remained unremedied for the applicable grace period specified in
such Mortgage Loan or Companion Loan documents, other than the
failure to maintain terrorism insurance if such failure constitutes
an Acceptable Insurance Default (or if no grace period is specified
for those defaults which are capable of cure, 60 days); or
(ix) the applicable Master Servicer has received notice of the
foreclosure or proposed foreclosure of any lien on the related
Mortgaged Property; or
(x) the applicable Master Servicer or Special Servicer (in the
case of the Special Servicer, with the consent of the Directing
Certificateholder) determines that (i) a default (other than as
described in clause (iv) above) under the Mortgage Loan or Companion
Loan is imminent, (ii) such default will materially impair the value
of the corresponding Mortgaged Property as security for the Mortgage
Loan and Companion Loan (if any) or otherwise materially adversely
affect the interests of Certificateholders (and/or, with respect to
any Serviced Mortgage Loan, the related Companion Holder), and (iii)
the default will continue unremedied for the applicable cure period
under the terms of the Mortgage Loan or Companion Loan or, if no
cure period is specified and the default is capable of being cured,
for 30 days (provided that such 30-day grace period does not apply
to a default that gives rise to immediate acceleration without
application of a grace period under the terms of the Mortgage Loan
or Companion Loan); provided that any determination that a Servicing
Transfer Event has occurred under this clause (x) with respect to
any Mortgage Loan or Companion Loan solely by reason of the failure
(or imminent failure) of the related Mortgagor to maintain or cause
to be maintained insurance coverage against damages or losses
arising from acts of terrorism may only be made by the Special
Servicer (with the consent of the Directing Certificateholder).
If any Companion Loan becomes a Specially Serviced Mortgage Loan,
the related Mortgage Loan, shall also become a Specially Serviced Mortgage Loan.
If any Mortgage Loan becomes a Specially Serviced Mortgage Loan, any related
Companion Loan shall become a Specially Serviced Mortgage Loan. If any Mortgage
Loan in a Crossed Group becomes a Specially Serviced Mortgage Loan, each other
Mortgage Loan in such Crossed Group shall also become a Specially Serviced
Mortgage Loan.
With respect to the Non-Serviced Mortgage Loans, the occurrence of a
"Servicing Transfer Event" shall be as defined in the related Non-Serviced
Pooling Agreement.
"Similar Law": As defined in Section 5.02(c).
"Skyline Portfolio A1 Pari Passu Companion Loan": With respect to
the Skyline Portfolio Whole Loan, the related promissory note made by the
related Mortgagor and secured by the Mortgage on the Skyline Portfolio Mortgaged
Property and designated as promissory note A1, which is not included in the
Trust and which is pari passu in right of payment to the Skyline Portfolio
Mortgage Loan and to the Skyline Portfolio A2 Pari Passu Companion Loan to the
extent set forth in the related Mortgage Loan documents and as provided in the
Skyline Portfolio Intercreditor Agreement.
"Skyline Portfolio A2 Pari Passu Companion Loan": With respect to
the Skyline Portfolio Whole Loan, the related promissory note made by the
related Mortgagor and secured by the Mortgage on the Skyline Portfolio Mortgaged
Property and designated as promissory note A2, which is not included in the
Trust and which is pari passu in right of payment to the Skyline Portfolio
Mortgage Loan and to the Skyline Portfolio A1 Pari Passu Companion Loan to the
extent set forth in the related Mortgage Loan documents and as provided in the
Skyline Portfolio Intercreditor Agreement.
"Skyline Portfolio Companion Loan Securities": Any class of
securities backed, wholly or partially, by any Skyline Portfolio Pari Passu
Companion Loan.
"Skyline Portfolio Intercreditor Agreement": The Intercreditor and
Servicing Agreement, dated January 26, 2007, by and among the holders of the
Skyline Portfolio Notes, relating to the relative rights of such holders of the
Skyline Portfolio Whole Loan, as the same may be further amended in accordance
with the terms thereof.
"Skyline Portfolio Mortgage Loan": With respect to the Skyline
Portfolio Whole Loan, the Mortgage Loan that is included in the Trust
(identified as Mortgage Loan No. 3 on the Mortgage Loan Schedule), which is
designated as promissory note A3 and is pari passu in right of payment with the
Skyline Portfolio Pari Passu Companion Loans to the extent set forth in the
related Mortgage Loan documents and as provided in the Skyline Portfolio
Intercreditor Agreement.
"Skyline Portfolio Mortgaged Property": The Mortgaged Property
which secures the Skyline Portfolio Whole Loan.
"Skyline Portfolio Notes": The Skyline Portfolio Mortgage Loan
and the Skyline Portfolio Pari Passu Companion Loans.
"Skyline Portfolio Pari Passu Companion Loan": Each of the
Skyline Portfolio A1 Pari Passu Companion Loan and the Skyline Portfolio A2
Pari Passu Companion Loan.
"Skyline Portfolio Pari Passu Companion Loan Holder": The holder
of any Skyline Portfolio Pari Passu Companion Loan.
"Skyline Portfolio Whole Loan": The Skyline Portfolio Mortgage
Loan, together with the Skyline Portfolio Pari Passu Companion Loans, each of
which is secured by the same Mortgage on the Skyline Portfolio Property.
References herein to the Skyline Portfolio Whole Loan shall be construed to
refer to the aggregate indebtedness under the Skyline Portfolio Notes.
"Solana Companion Loan Securities": Any class of securities backed,
wholly or partially, by the Solana Pari Passu Companion Loan.
"Solana Intercreditor Agreement": The A Notes Intercreditor
Agreement, dated February 27, 2007, by and between the holders of the Solana
Notes, relating to the relative rights of such holders of the Solana Whole Loan,
as the same may be further amended in accordance with the terms thereof.
"Solana Mortgage Loan": With respect to the Solana Whole Loan, the
Mortgage Loan that is included in the Trust (identified as Mortgage Loan No. 7
on the Mortgage Loan Schedule), which is designated as promissory note A2 and is
pari passu in right of payment with the Solana Pari Passu Companion Loan to the
extent set forth in the related Mortgage Loan documents and as provided in the
Solana Intercreditor Agreement.
"Solana Mortgaged Property": The Mortgaged Property which secures
the Solana Whole Loan.
"Solana Notes": The Solana Mortgage Loan and the Solana Pari
Passu Companion Loan.
"Solana Pari Passu Companion Loan": With respect to the Solana Whole
Loan, the related promissory note made by the related Mortgagor and secured by
the Mortgage on the Solana Mortgaged Property and designated as promissory note
A1, which is not included in the Trust and which is pari passu in right of
payment to the Solana Mortgage Loan to the extent set forth in the related
Mortgage Loan documents and as provided in the Solana Intercreditor Agreement.
"Solana Pari Passu Companion Loan Holder": The holder of the
Solana Pari Passu Companion Loan.
"Solana Whole Loan": The Solana Mortgage Loan, together with the
Solana Pari Passu Companion Loan, each of which is secured by the same Mortgage
on the Solana Property. References herein to the Solana Whole Loan shall be
construed to refer to the aggregate indebtedness under the Solana Notes.
"Sole Certificateholder": Any Certificate Owner of a book-entry
Certificate or a Holder of a definitive Certificate holding 100% of the Class X,
Class J, Class K, Class L, Class M, Class N, Class P and Class NR Certificates
or, with respect to such Classes of Certificates an assignment of the voting
rights thereof; provided, however, that the Certificate Balances of the Class
A-1, Class A-1S, Class A-2, Class A-2S, Class A-2SFL, Class A-3, Class A-3S,
Class A-1A, Class A-M, Class A-MS, Class A-J, Class A-JFL, Class A-JS, Class B,
Class B-S, Class C, Class C-S, Class D, Class D-S, Class E, Class E-S, Class F,
Class F-S, Class G, Class G-S, Class H, Class H-S Certificates have been
retired.
"SOME II": SOME II, LLC and its successors in interest and
assigns.
"Special Servicer": X.X. Xxxxxx Company, Inc., a Virginia
corporation, and its successors in interest and assigns, or any successor
Special Servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan (other than in the case of the Non-Serviced Mortgage
Loans), the fee payable to the Special Servicer pursuant to the first paragraph
of Section 3.11(b).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan (other than in the case of the
Non-Serviced Mortgage Loans), 0.25% per annum computed on the basis of the
Stated Principal Balance of the related Mortgage Loan (including any REO Loan)
or Companion Loan (if provided for in the related Intercreditor Agreement) in
the same manner as interest is calculated on the Specially Serviced Mortgage
Loans.
"Specially Serviced Mortgage Loan": As defined in Section 3.01(a).
"Startup Day": The day designated as such in Section 10.01(b).
"Stated Principal Balance": With respect to any Mortgage Loan, as of
any date of determination, an amount equal to (x) the Cut-off Date Principal
Balance of such Mortgage Loan (or in the case of a Qualified Substitute Mortgage
Loan, the unpaid principal balance of such Mortgage Loan after application of
all scheduled payments of principal and interest due during or prior to the
month of substitution, whether or not received), plus (y) any Mortgage Deferred
Interest added to the principal balance of such Mortgage Loan on or before the
end of the immediately preceding Due Period minus (z) the sum of:
(i) the principal portion of each Monthly Payment due on such
Mortgage Loan after the Cut-off Date (or in the case of a Qualified
Substitute Mortgage Loan, the Due Date in the related month of
substitution), to the extent received from the Mortgagor or advanced
by the applicable Master Servicer or the Co-Trustee;
(ii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-off Date (or in the case of a Qualified
Substitute Mortgage Loan, the Due Date in the related month of
substitution);
(iii) the principal portion of all Insurance and Condemnation
Proceeds (to the extent allocable to principal on the related
Mortgage Loan) and Liquidation Proceeds received with respect to
such Mortgage Loan after the Cut-off Date (or in the case of a
Qualified Substitute Mortgage Loan, the Due Date in the related
month of substitution); and
(iv) any reduction in the outstanding principal balance of
such Mortgage Loan resulting from a Deficient Valuation that
occurred prior to the end of the Due Period for the most recent
Distribution Date.
With respect to any REO Loan that is a successor to a Mortgage Loan,
as of any date of determination, an amount equal to (x) the Stated Principal
Balance of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect
to such REO Loan; and
(ii) the principal portion of all Insurance and Condemnation
Proceeds (to the extent allocable to principal on the related
Mortgage Loan), Liquidation Proceeds and REO Revenues received with
respect to such REO Loan.
A Mortgage Loan or a REO Loan that is a successor to a Mortgage Loan
shall be deemed to be part of the Trust Fund and to have an outstanding Stated
Principal Balance until the Distribution Date on which the payments or other
proceeds, if any, received in connection with a Liquidation Event in respect
thereof are to be (or, if no such payments or other proceeds are received in
connection with such Liquidation Event, would have been) distributed to
Certificateholders.
With respect to any Companion Loan on any date of determination, the
Stated Principal Balance shall equal the unpaid principal balance of such
Companion Loan as of such date.
"Statement to Certificateholders": As defined in Section 4.02(a).
"Subcontractor": Any vendor, subcontractor or other Person that is
not responsible for the overall servicing (as "servicing" is commonly understood
by participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Mortgage Loans under the direction or authority of any Master
Servicer (or a Sub-Servicer of any Master Servicer), the Special Servicer (or a
Sub-Servicer of the Special Servicer), an Additional Servicer (or a Sub-Servicer
of an Additional Servicer) or the Trustee or Co-Trustee.
"Sub-Servicer": Any Person that (i) Services Mortgage Loans on
behalf of any Master Servicer, Special Servicer or any Sub-Servicer and (ii) is
responsible for the performance (whether directly or through Sub-Servicers or
Subcontractors) of servicing functions required to be performed by any Master
Servicer, Special Servicer, Servicing Function Participant or an Additional
Servicer, under this Agreement, with respect to some or all of the Mortgage
Loans, that are identified in Item 1122(d) of Regulation AB.
"Sub-Servicing Agreement": The written contract between the
applicable Master Servicer or the Special Servicer, as the case may be, and any
Sub-Servicer relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Subordinate Certificate": Any Class A-M, Class A-MS, Class A-J,
Class A-JFL, Class A-JS, Class B, Class B-S, Class C, Class C-S, Class D, Class
D-S, Class E, Class E-S, Class F, Class F-S, Class G, Class G-S, Class H, Class
H-S, Class J, Class K, Class L, Class M, Class N, Class P, or Class NR
Certificate.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(b) hereof, an amount equal to the excess, if any, of
the Purchase Price of the Mortgage Loan being replaced calculated as of the date
of substitution over the Stated Principal Balance of the related Qualified
Substitute Mortgage Loan after application of all scheduled payments of
principal and interest due during or prior to the month of substitution. In the
event that one or more Qualified Substitute Mortgage Loans are substituted (at
the same time by the same Mortgage Loan Seller) for one or more deleted Mortgage
Loans, the Substitution Shortfall Amount shall be determined as provided in the
preceding sentence on the basis of the aggregate Purchase Prices of the Mortgage
Loan or Mortgage Loans being replaced and the aggregate Stated Principal
Balances of the related Qualified Substitute Mortgage Loans.
"Successful Bidder": As defined in Section 7.01(c).
"Swap Contract": (A) With respect to the Class A-2SFL Certificates,
the 1992 ISDA Master Agreement, together with the related schedule, confirmation
and any annexes thereto, dated as of March 29, 2007, by and among the Swap
Counterparty and the Trustee, solely in its capacity as Trustee, on behalf of
the Trust (a copy of which is attached hereto as Exhibit CC), and (B) with
respect to the Class A-JFL Certificates, the 1992 ISDA Master Agreement,
together with the related schedule, confirmation and any annexes thereto, dated
as of March 29, 2007, by and among the Swap Counterparty and the Trustee, solely
in its capacity as Trustee, on behalf of the Trust (a copy of which is attached
hereto as Exhibit DD).
"Swap Counterparty": (A) With respect to the Class A-2SFL
Certificates, JPMorgan, acting in such capacity, or its successor in interest,
and (B) with respect to the Class A-JFL Certificates, JPMorgan, acting in such
capacity, or its successor in interest.
"Swap Counterparty Collateral Account": (A) with respect to the
Class A-2SFL Certificates, the trust account or accounts created and maintained
as a separate account or accounts by the Trustee pursuant to Section 3.31(g),
which shall be entitled "Xxxxx Fargo Bank, N.A., as Trustee, in trust for the
registered Holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass Through Certificates, Series 2007 LDP10 Class A-2SFL
Certificates (subject to the rights of the Swap Counterparty as provided in the
Swap Contract), Swap Counterparty Collateral Account," and which must be an
Eligible Account (or a subaccount of an Eligible Account) and (B) with respect
to the Class A-JFL Certificates, the trust account or accounts created and
maintained as a separate account or accounts by the Trustee pursuant to Section
3.31(g), which shall be entitled "Xxxxx Fargo Bank, N.A., as Trustee, in trust
for the registered Holders of X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass Through Certificates, Series 2007 LDP10 Class
A-JFL Certificates (subject to the rights of the Swap Counterparty as provided
in the Swap Contract), Swap Counterparty Collateral Account," and which must be
an Eligible Account (or a subaccount of an Eligible Account). The Swap
Counterparty Collateral Accounts shall not be assets of either the Lower Tier
REMIC, the Middle Tier REMIC or the Upper Tier REMIC formed hereunder.
"Swap Default": Either the Class A-2SFL Swap Default or the Class
A-JFL Swap Default, individually or collectively, as the context may require.
"Swap Termination Fees": Any fees or expenses payable by the related
Swap Counterparty to the Trust in connection with a related Swap Default,
termination of the related Swap Contract or liquidation of the related Swap
Contract, as specified in the related Swap Contract.
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of the Upper-Tier REMIC, the Middle-Tier REMIC and
the Lower-Tier REMIC due to its classification as a REMIC under the REMIC
Provisions, and the applicable federal income tax returns to be filed on behalf
of the Grantor Trust, together with any and all other information, reports or
returns that may be required to be furnished to the Certificateholders or filed
with the Internal Revenue Service or any other governmental taxing authority
under any applicable provisions of federal tax law or Applicable State and Local
Tax Law.
"Timberline Apartments AB Companion Loan": That certain loan
evidenced by a promissory B note, which is not an asset of the Trust Fund,
secured by the Mortgaged Property securing the Timberline Apartments Mortgage
Loan.
"Timberline Apartments Intercreditor Agreement": That certain
Intercreditor Agreement Among Noteholders, dated as of March 13, 2007, by and
between PNC Bank, National Association, as the A Note Holder, and CBA Mezzanine
Capital Finance, LLC, as the B Note Holder. The Timberline Apartments
Intercreditor Agreement relates to the Timberline Apartments Whole Loan.
"Timberline Apartments Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 193.
"Timberline Apartments Whole Loan": The Timberline Apartments
Mortgage Loan and the Timberline Apartments AB Companion Loan.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit": As defined in Section 5.02(d).
"Transferable Servicing Interest": Subject to reduction by the
Trustee pursuant to Section 3.11(a), the amount by which the Servicing Fee
otherwise payable to Master Servicer No. 1 hereunder exceeds the sum of (i) the
Primary Servicing Fee and (ii) the amount of the Servicing Fee calculated using
the Retained Fee Rate.
"Transferee": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(c).
"Trust": The trust created hereby and to be administered
hereunder.
"Trust Fund": The corpus of the trust created hereby and to be
administered hereunder, consisting of: (i) such Mortgage Loans as from time to
time are subject to this Agreement, together with the Mortgage Files relating
thereto (subject to, in the case of any Serviced Mortgage Loan, the interests of
the related Companion Holder, in the related Mortgage File); (ii) all scheduled
or unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-off Date (or with respect to a Qualified Substitute Mortgage Loan,
the Due Date in the month of substitution); (iii) any REO Property (to the
extent of the Trust Fund's interest therein), the Trust Fund's beneficial
interest in the Mortgaged Property securing the Skyline Portfolio Whole Loan and
the Solana Whole Loan acquired under the BACM 2007-1 Pooling Agreement and the
Trust Fund's beneficial interest in the Mortgaged Property securing the
Americold Pool 2 Whole Loan acquired under the JPMCC 2007-CIBC18 Pooling
Agreement; (iv) all revenues received in respect of any REO Property (to the
extent of the Trust Fund's interest therein); (v) the applicable Master
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to this Agreement and any proceeds thereof (to the extent of the Trust Fund's
interest therein); (vi) any Assignments of Leases and any security agreements
(to the extent of the Trust Fund's interest therein); (vii) any letters of
credit, indemnities, guaranties or lease enhancement policies given as
additional security for any Mortgage Loans (to the extent of the Trust Fund's
interest therein); (viii) all assets deposited in the Servicing Accounts (to the
extent of the Trust Fund's interest therein), amounts on deposit in the
Certificate Accounts, the Lower-Tier Distribution Account, the Middle-Tier
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Floating Rate Accounts, the Interest Reserve Account,
the Gain-on-Sale Reserve Account and any REO Account (to the extent of the Trust
Fund's interest in any such account), including any reinvestment income, as
applicable; (ix) any Environmental Indemnity Agreements (to the extent of the
Trust Fund's interest therein); (x) the rights and remedies of the Depositor
under each Mortgage Loan Purchase Agreement (to the extent transferred to the
Trustee); (xi) the Uncertificated Lower-Tier Interests and the Class A-2SFL and
Class A-JFL Regular Interests; (xii) the Swap Contracts; and (xiii) the proceeds
of the foregoing (other than any interest earned on deposits in the Lock-Box
Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to
the extent such interest belongs to the related Mortgagor).
"Trustee": Xxxxx Fargo Bank, N.A., a national banking association
organized under the laws of the United States, or its successor in interest,
in its capacity as trustee or any successor Trustee appointed as herein
provided.
"Trustee Exception Report": As defined in Section 2.02(f).
"Trustee Fee": The fee to be paid to the Trustee as compensation
for the Trustee's activities under this Agreement. The Trustee Fee includes
the Co-Trustee Fee. No portion of the Trustee Fee shall be calculated by
reference to any Companion Loan or the principal balance of any Companion
Loan.
"Trustee Fee Rate": A rate equal to 0.00039% per annum computed on
the basis of the Stated Principal Balance of the related Mortgage Loan (and in
the same manner as interest is calculated on the related Mortgage Loan) as of
the preceding Distribution Date. The Trustee Fee Rate includes the Co-Trustee
Fee rate.
"Turtle Creek Park AB Companion Loan": That certain loan evidenced
by a promissory B note, which is not an asset of the Trust Fund, secured by the
Mortgaged Property securing the Turtle Creek Park Mortgage Loan.
"Turtle Creek Park Intercreditor Agreement": That certain
Intercreditor Agreement Among Noteholders, dated as of March 13, 2007, by and
between PNC Bank, National Association, as the A Note Holder, and CBA Mezzanine
Capital Finance, LLC, as the B Note Holder. The Turtle Creek Park Intercreditor
Agreement relates to the Turtle Creek Park Whole Loan.
"Turtle Creek Park Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 207.
"Turtle Creek Park Whole Loan": The Turtle Creek Park Mortgage
Loan and the Turtle Creek Park AB Companion Loan.
"UBS": UBS Real Estate Securities Inc., a Delaware corporation,
or its successor in interest.
"UCC": The Uniform Commercial Code, as enacted in each applicable
state.
"UCC Financing Statement": A financing statement prepared and
filed pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Lower-Tier Interests": Any of the Class L-RB,
Class L-RQ, Class L-SB and Class L-SQ Uncertificated Interests.
"Uncertificated Middle-Tier Interests": Any of the Class MA-1, Class
MA-1S, Class MA-2, Class MA-2S, Class MA-2SFL, Class MA-3, Class MA-3S, Class
MA-1A, Class MA-M, Class MA-MS, Class MA-J, Class MA-JFL, Class MA-JS, Class MB,
Class MB-S, Class MC, Class MC-S, Class MD, Class MD-S, Class ME, Class ME-S,
Class MF, Class MF-S, Class MG, Class MG-S, Class MH, Class MH-S, Class MJ,
Class MK, Class ML, Class MM, Class MN, Class MP and Class MNR Uncertificated
Interests.
"Underwriters": X.X. Xxxxxx Securities Inc., UBS Securities LLC,
Citigroup Global Markets Inc., Commerzbank Capital Markets Corp. and PNC
Capital Markets LLC.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person that made the
Advance hereunder, on the one hand, and the Trust Fund, on the other, as part of
a Workout-Delayed Reimbursement Amount pursuant to subsections (iii) and (iv) of
Section 3.05(a) but that has not been recovered from the Mortgagor or otherwise
from collections on or the proceeds of the Mortgage Loan or REO Property in
respect of which the Advance was made.
"Unscheduled Principal Distribution Amount": With respect to any
Distribution Date and the Mortgage Loans, the aggregate of (a) all Principal
Prepayments received on such Mortgage Loans on or prior to the P&I Advance Date
and (b) the principal portions of all Liquidation Proceeds, Insurance and
Condemnation Proceeds (net of Special Servicing Fees, Liquidation Fees, accrued
interest on Advances and other additional Trust Fund expenses incurred in
connection with the related Mortgage Loan) and, if applicable, REO Revenues
received with respect to such Mortgage Loans and any REO Loans on or prior to
the related P&I Advance Date, but in each case only to the extent that such
principal portion represents a recovery of principal for which no advance was
previously made pursuant to Section 4.03 in respect of a preceding Distribution
Date.
"Upper-Tier Distribution Account": The segregated account or
accounts (or a subaccount of the Distribution Account) created and maintained by
the Trustee pursuant to Section 3.04(b) in trust for the Certificateholders,
which shall be entitled "Xxxxx Fargo Bank, N.A., as Trustee, in trust for the
registered Holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, 0000-XXX00, Xxxxx-Xxxx
Distribution Account." Any such account or accounts shall be an Eligible Account
(or a subaccount of the Distribution Account).
"Upper-Tier REMIC": One of the three separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Middle-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"U.S. Dollars": Lawful money of the United States of America.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in applicable Treasury
Regulations) or other entity created or organized in, or under the laws of, the
United States, any State thereof or the District of Columbia, including any
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to United States federal income tax regardless
of its source or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more such
U.S. Persons have the authority to control all substantial decisions of such
trust (or, to the extent provided in applicable Treasury Regulations, certain
trusts in existence on August 20, 1996 which are eligible to elect to be treated
as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, the Voting Rights shall be allocated among the various
Classes of Certificateholders as follows: (i) 4% in the case of the Class X
Certificates and (ii) in the case of any other Class of Regular Certificates
(other than the Class X certificates) a percentage equal to the product of 96%
and a fraction, the numerator of which is equal to the aggregate Certificate
Balance of such Class, in each case, determined as of the Distribution Date
immediately preceding such time, and the denominator of which is equal to the
aggregate Certificate Balance of the Regular Certificates (other than the Class
X Certificates), each determined as of the Distribution Date immediately
preceding such time. None of the Class S Certificates, the Class R Certificates,
the Class MR Certificates and the Class LR Certificates will be entitled to any
Voting Rights. Voting Rights allocated to a Class of Certificateholders shall be
allocated among such Certificateholders in proportion to the Percentage
Interests evidenced by their respective Certificates. Appraisal Reductions shall
not result in a change in the Class Voting Rights of any Class of Regular
Certificates.
"Whole Loan": Each AB Whole Loan , the 000 Xxxxxxxxx Xxxxxx Whole
Loan, the Skyline Portfolio Pari Passu Whole Loan, the Solana Whole Loan and the
Americold Pool 2 Whole Loan.
"Withheld Amounts": As defined in Section 3.25(a).
"Workout-Delayed Reimbursement Amounts": With respect to any
Mortgage Loan, the amount of any Advances made with respect to such Mortgage
Loan on or before the date such Mortgage Loan becomes (or, but for the making of
three Monthly Payments under its modified terms, would then constitute) a
Corrected Mortgage Loan, together with (to the extent accrued and unpaid)
interest on such Advances, to the extent that (i) such Advance (and accrued and
unpaid interest thereon) is not reimbursed to the Person who made such Advance
on or before the date, if any, on which such Mortgage Loan becomes a Corrected
Mortgage Loan and (ii) the amount of such Advance (and accrued and unpaid
interest thereon) becomes an obligation of the Mortgagor to pay such amount
under the terms of the modified loan documents. That any amount constitutes all
or a portion of any Workout-Delayed Reimbursement Amount shall not in any manner
limit the right of any Person hereunder to determine in the future that such
amount instead constitutes a Nonrecoverable Advance.
"Workout Fee": The fee paid to the Special Servicer with respect to
each Corrected Mortgage Loan (other than with respect to the Non-Serviced
Mortgage Loans).
"Workout Fee Rate": A fee of 1.00% of each collection (other than
Penalty Charges and Excess Interest) of interest and principal (other than any
amount for which a Liquidation Fee would be paid), including (i) Monthly
Payments, (ii) Balloon Payments and (iii) payments (other than those included in
clause (i) or (ii) of this definition) at maturity, received on each Corrected
Mortgage Loan for so long as it remains a Corrected Mortgage Loan.
"Yield Maintenance Charge": With respect to any Mortgage Loan or REO
Loan, the yield maintenance charge or prepayment premium set forth in the
related Mortgage Loan documents; provided that no amounts shall be considered
Yield Maintenance Charges until there has been a full recovery of all principal,
interest and other amounts due under the related Mortgage Loan.
Section 1.02 Certain Calculations. Unless otherwise specified
herein, for purposes of determining amounts with respect to the Certificates and
the rights and obligations of the parties hereto, the following provisions shall
apply:
(i) All calculations of interest (other than as provided in the
Mortgage Loan documents) provided for herein shall be made on the basis of
a 360-day year consisting of twelve 30-day months.
(ii) Any Mortgage Loan payment is deemed to be received on the date
such payment is actually received by the applicable Master Servicer, the
Special Servicer or the Trustee; provided, however, that for purposes of
calculating distributions on the Certificates, Principal Prepayments with
respect to any Mortgage Loan are deemed to be received on the date they
are applied in accordance with the Servicing Standards consistent with the
terms of the related Mortgage Note and Mortgage to reduce the outstanding
principal balance of such Mortgage Loan on which interest accrues.
(iii) Any reference to the Certificate Balance of any Class of
Certificates (other than the Class S, Class X and Residual Certificates)
or the Class A-2SFL Regular Interest (and correspondingly, the Class
A-2SFL Certificates) or the Class A-JFL Regular Interest (and
correspondingly, the Class A-JFL Certificates) on or as of a Distribution
Date shall refer to the Certificate Balance of such Class of Certificates
(other than the Class S, Class X and Residual Certificates) or the Class
A-2SFL Regular Interest (and correspondingly, the Class A-2SFL
Certificates) or the Class A-JFL Regular Interest (and correspondingly,
the Class A-JFL Certificates) on such Distribution Date after giving
effect to (a) any distributions made on such Distribution Date pursuant to
Section 4.01(a), (b) any Collateral Support Deficit allocated to such
Class of Certificates (other than the Class S, Class X and Residual
Certificates) or the Class A-2SFL Regular Interest (and correspondingly,
the Class A-2SFL Certificates) or the Class A-JFL Regular Interest (and
correspondingly, the Class A-JFL Certificates) on the immediately
preceding Distribution Date pursuant to Section 4.04, (c) the addition of
any Certificate Deferred Interest allocated to such Class of Certificates
(other than the Class S, Class X and Residual Certificates) or the Class
A-2SFL Regular Interest (and correspondingly, the Class A-2SFL
Certificates) or the Class A-JFL Regular Interest (and correspondingly,
the Class A-JFL Certificates) and added to such Certificate Balance
pursuant to Section 4.06(b) and (d) any recoveries on the related Mortgage
Loan of Nonrecoverable Advances (plus interest thereon) that were
previously reimbursed from principal collections on the Mortgage Loans
that resulted in a reduction of the Principal Distribution Amount, Loan
Group R-1 Principal Distribution Amount, Loan Group R-2 Principal
Distribution Amount, Loan Group R Principal Distribution Amount or Loan
Group S Principal Distribution Amount, which recoveries are allocated to
such Class of Certificates or the Class A-2SFL Regular Interest or Class
A-JFL Regular Interest and added to the Certificate Balance pursuant to
Section 4.04 (a). The Certificate Balance of the Class A-2SFL Certificates
shall be equal to the Certificate Balance of the Class A-2SFL Regular
Interest at all times, and any reductions or increases in the Certificate
Balance of the Class A-2SFL Regular Interest shall result in a
corresponding reduction or increase, as applicable, of the Certificate
Balance of the Class A-2SFL Certificates. The Certificate Balance of the
Class A-JFL Certificates shall be equal to the Certificate Balance of the
Class A-JFL Regular Interest at all times, and any reductions or increases
in the Certificate Balance of the Class A-JFL Regular Interest shall
result in a corresponding reduction or increase, as applicable, of the
Certificate Balance of the Class A-JFL Certificates.
[End of Article I]
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, does hereby establish a
trust, appoint the Trustee as trustee of the trust, assign, sell, transfer and
convey to the Trustee, in trust, without recourse, for the benefit of the
Certificateholders and the Trustee (as holder of the Class A-2SFL Regular
Interest and the Class A-JFL Regular Interest, the Uncertificated Middle-Tier
Interests and the Uncertificated Lower-Tier Interests) all the right, title and
interest of the Depositor, including any security interest therein for the
benefit of the Depositor, in, to and under (i) the Mortgage Loans identified on
the Mortgage Loan Schedule, (ii) Sections 1, 2, 3, 4, 5, 6(a) (excluding clause
(viii) of Section 6(a)), 6(c), 6(d), 6(e), 6(f), 6(g), 10, 11, 13, 14, 15, 17,
18 and 19 of each of the Mortgage Loan Purchase Agreements, (iii) the
Intercreditor Agreements and any intercreditor agreements with respect to any
related mezzanine loans, and (iv) all other assets included or to be included in
the Trust Fund. Such assignment includes all interest and principal received or
receivable on or with respect to the Mortgage Loans other than (i) payments of
principal and interest due and payable on the Mortgage Loans on or before the
later of March 1, 2007 and the Due Date for such Mortgage Loan in March 2007
(and March 1, 2007 for any Mortgage Loan that does not have a Due Date in March
2007) and (ii) prepayments of principal collected on or before the later of
March 1, 2007 and the Due Date for such Mortgage Loan in March 2007 (and March
1, 2007 for any Mortgage Loan that does not have a Due Date in March 2007). The
transfer of the Mortgage Loans and the related rights and property accomplished
hereby is absolute and, notwithstanding Section 12.07, is intended by the
parties to constitute a sale. In connection with the assignment to the Trustee
of Sections 1, 2, 3, 4, 5, 6(a) (excluding clause (viii) of Section 6(a)), 6(c),
6(d), 6(e), 6(f), 6(g), 10, 11, 13, 14, 15, 17, 18 and 19 of each of the
Mortgage Loan Purchase Agreements, it is intended that the Trustee get the
benefit of Sections 10, 11 and 14 thereof in connection with any exercise of
rights under the assigned Sections, and the Depositor shall use its best efforts
to make available to the Trustee the benefits of Sections 10, 11 and 14 in
connection therewith.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each of the Mortgage Loan Sellers pursuant to the
applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby, on or before the Closing Date, the Mortgage File for each
Mortgage Loan so assigned, and deliver the Servicing File to the applicable
Master Servicer. If the applicable Mortgage Loan Seller cannot deliver, or cause
to be delivered, as to any Mortgage Loan, the original Mortgage Note, the
delivery requirements of the applicable Mortgage Loan Purchase Agreement and
this Section 2.01(b) shall be deemed to have been satisfied; provided, such
Mortgage Loan Seller shall deliver a copy or duplicate original of such Mortgage
Note, together with an affidavit certifying that the original thereof has been
lost or destroyed and indemnifying the Trustee. If the applicable Mortgage Loan
Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of
the documents and/or instruments referred to in clauses (ii), (iv), (viii), (xi)
and (xii) of the definition of "Mortgage File," with evidence of filing or
recording thereon (if intended to be recorded or filed), solely because of a
delay caused by the public filing or recording office where such document or
instrument has been delivered for filing or recordation, the delivery
requirements of the applicable Mortgage Loan Purchase Agreement and this Section
2.01(b) shall be deemed to have been satisfied on a provisional basis as of the
Closing Date as to such non-delivered document or instrument, and such
non-delivered document or instrument shall be deemed to have been included in
the Mortgage File, provided that a duplicate original or a photocopy of such
non-delivered document or instrument (certified by the applicable public filing
or recording office, the applicable title insurance company or the applicable
Mortgage Loan Seller to be a true and complete copy of the original thereof
submitted for filing or recording) is delivered to the Trustee or a Custodian
appointed thereby on or before the Closing Date, and either the original of such
non-delivered document or instrument, or a photocopy thereof (certified by the
appropriate county recorder's office, in the case of the documents and/or
instruments referred to in clause (ii) of the definition of "Mortgage File," to
be a true and complete copy of the original thereof submitted for recording),
with evidence of filing or recording thereon, is delivered to the Trustee or
such Custodian within 180 days of the Closing Date (or within such longer
period, not to exceed 18 months, after the Closing Date as the Trustee may
consent to, which consent shall not be unreasonably withheld so long as the
applicable Mortgage Loan Seller is, as certified in writing to the Trustee no
less often than every 90 days, attempting in good faith to obtain from the
appropriate public filing office or county recorder's office such original or
photocopy). If the applicable Mortgage Loan Seller cannot deliver, or cause to
be delivered, as to any Mortgage Loan, any of the documents and/or instruments
referred to in clauses (ii), (iv), (viii), (xi) and (xii) of the definition of
"Mortgage File," with evidence of filing or recording thereon, for any other
reason, including, without limitation, that such non-delivered document or
instrument has been lost or destroyed, the delivery requirements of the
applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be
deemed to have been satisfied as to such non-delivered document or instrument,
and such non-delivered document or instrument shall be deemed to have been
included in the Mortgage File, provided that a photocopy of such non-delivered
document or instrument (with evidence of filing or recording thereon and
certified in the case of the documents and/or instruments referred to in clause
(ii) of the definition of "Mortgage File" by the appropriate county recorder's
office to be a true and complete copy of the original thereof submitted for
recording) is delivered to the Trustee or a Custodian appointed thereby on or
before the Closing Date. Neither the Trustee nor any Custodian shall in any way
be liable for any failure by any Mortgage Loan Seller or the Depositor to comply
with the delivery requirements of the related Mortgage Loan Purchase Agreement
and this Section 2.01(b). If, on the Closing Date as to any Mortgage Loan, the
applicable Mortgage Loan Seller cannot deliver in complete and recordable form
(or form suitable for filing or recording, if applicable) any one of the
assignments in favor of the Trustee referred to in clause (iii), (v) (to the
extent not already assigned pursuant to clause (iii)), or (xi) of the definition
of "Mortgage File" solely because of the unavailability of filing or recording
information as to any existing document or instrument and/or because such
assignments are assignments in blank and have not been completed in favor of the
Trustee as specified in the related clause(s) of the definition of "Mortgage
File," such Mortgage Loan Seller may provisionally satisfy the delivery
requirements of the related Mortgage Loan Purchase Agreement and this Section
2.01(b) by delivering with respect to such Mortgage Loan on the Closing Date an
omnibus assignment of such Mortgage Loan substantially in the form of Exhibit H;
provided that all required original assignments with respect to such Mortgage
Loan (except for any Mortgage which has been recorded in the name of MERS or its
designee), in fully complete and recordable form (or form suitable for filing or
recording, if applicable), are delivered to the Trustee or its Custodian within
180 days of the Closing Date (or within such longer period, not to exceed 18
months after the Closing Date, as the Trustee in its discretion may consent to,
which consent shall not be unreasonably withheld so long as the applicable
Mortgage Loan Seller is, as certified in writing to the Trustee no less often
than every 90 days, attempting in good faith to obtain from the appropriate
public filing office or county recorder's office the applicable filing or
recording information as to the related document or instrument). Notwithstanding
anything herein to the contrary, with respect to letters of credit, the
applicable Mortgage Loan Seller shall deliver to the applicable Master Servicer
and the applicable Master Servicer shall hold the original (or copy, if such
original has been submitted by the applicable Mortgage Loan Seller to the
issuing bank to effect an assignment or amendment of such letter of credit
(changing the beneficiary thereof to the Trust (in care of the applicable Master
Servicer)) that may be required in order for the applicable Master Servicer to
draw on such letter of credit on behalf of the Trust in accordance with the
applicable terms thereof and/or of the related Mortgage Loan documents); and the
applicable Mortgage Loan Seller shall be deemed to have satisfied the delivery
requirements of the related Mortgage Loan Purchase Agreement and this Section
2.01(b) by delivering with respect to any letter(s) of credit a copy thereof to
the Trustee together with an officer's certificate of the applicable Mortgage
Loan Seller certifying that such document has been delivered to the applicable
Master Servicer or an officer's certificate from the applicable Master Servicer
certifying that it holds the letter(s) of credit pursuant to this Section
2.01(b), one of which shall be delivered to the Trustee on the Closing Date. If
a letter of credit referred to in the previous sentence is not in a form that
would allow the applicable Master Servicer to draw on such letter of credit on
behalf of the Trust in accordance with the applicable terms thereof and/or of
the related Mortgage Loan documents, the applicable Mortgage Loan Seller shall
deliver the appropriate assignment or amendment documents (or copies of such
assignment or amendment documents if the related Mortgage Loan Seller has
submitted the originals to the related issuer of such letter of credit for
processing) to the applicable Master Servicer within 60 days of the Closing
Date. If not otherwise paid by the related Mortgagor, the applicable Mortgage
Loan Seller shall pay any costs of assignment or amendment of such letter(s) of
credit required in order for the applicable Master Servicer to draw on such
letter(s) of credit on behalf of the Trust and shall cooperate with the
reasonable requests of the applicable Master Servicer or the Special Servicer,
as applicable, in connection with effectuating a draw under any such letter of
credit prior to the date such letter of credit is assigned or amended in order
that it may be drawn by the applicable Master Servicer on behalf of the Trust.
(c) Pursuant to each Mortgage Loan Purchase Agreement, the related
Mortgage Loan Seller is required at its sole cost and expense, to itself, or to
engage a third party to, put each assignment of Mortgage, each assignment of
Assignment of Leases and each assignment of each UCC Financing Statement
(collectively, "Assignments" and, individually, "Assignment") relating to the
Mortgage Loans conveyed by it under the applicable Mortgage Loan Purchase
Agreement in proper form for filing or recording, as applicable, and to submit
such Assignments (except with respect to any Mortgages, Assignments of Leases
and UCC Financing Statements that have been recorded in the name of MERS or its
designee) for filing or recording, as the case may be, in the applicable public
filing or recording office, and on the Closing Date, such Mortgage Loan Seller
may deliver one (1) omnibus assignment for all such Mortgage Loans to the
Trustee or its Custodian as provided in Section 2.01(b). Except under the
circumstances provided for in the last sentence of this subsection (c), the
related Mortgage Loan Seller will itself, or a third party at such Mortgage Loan
Seller's expense will, promptly (and in any event within 120 days of the later
of the Closing Date and the Trustee's actual receipt of the related documents
and the necessary recording and filing information) cause to be submitted for
recording or filing, as the case may be, in the appropriate public office for
real property records or UCC Financing Statements, as appropriate, each
assignment to the Trustee referred to in clauses (iii) and (v) of the definition
of "Mortgage File" and each UCC assignment to the Trustee referred to in clause
(xi) of the definition of "Mortgage File." Each such Assignment submitted for
recording shall reflect that it should be returned by the public recording
office to the Trustee or its designee following recording (or to the agent of
the Mortgage Loan Seller who will then be responsible for delivery of the same
to the Trustee or its designee), and each such UCC assignment submitted for
recording or filing shall reflect that the file copy thereof should be returned
to the Trustee or its designee following recording or filing (or to the agent of
the Mortgage Loan Seller who will then be responsible for delivery of the same
to the Trustee or its designee). If any such document or instrument is
determined to be incomplete or not to meet the recording or filing requirements
of the jurisdiction in which it is to be recorded or filed, or is lost by the
public office or returned unrecorded or unfiled, as the case may be, because of
a defect therein, on or about 180 days after the Closing Date, the related
Mortgage Loan Seller or its designee shall prepare, at its own expense, a
substitute therefor or cure such defect, as the case may be, and thereafter the
Mortgage Loan Seller or its designee shall, at the expense of the related
Mortgage Loan Seller, upon receipt thereof cause the same to be duly recorded or
filed, as appropriate. If, by the first anniversary of the Closing Date, the
Trustee has not received confirmation of the recording or filing as the case may
be, of any such Assignment, it shall so advise the related Mortgage Loan Seller
who may then pursue such confirmation itself or request that the Trustee pursue
such confirmation at the related Mortgage Loan Seller's expense, and upon such a
request and provision for payment of such expenses satisfactory to the Trustee,
the Trustee, at the expense of the applicable Mortgage Loan Seller, shall cause
a search of the land records of each applicable jurisdiction or of the records
of the offices of the applicable Secretary of State for confirmation that the
Assignment appears in such records and retain a copy of such confirmation in the
related Mortgage File. In the event that confirmation of the recording or filing
of an Assignment cannot be obtained, the Trustee or the related Mortgage Loan
Seller, as applicable, shall promptly inform the other and the Trustee shall
provide such Mortgage Loan Seller with a copy of the Assignment and request the
preparation of a new Assignment. The related Mortgage Loan Seller shall pay the
expenses for the preparation of replacement Assignments for any Assignments
which, having been properly submitted for filing or recording to the appropriate
governmental office by the Trustee, fail to appear of record and must be
resubmitted. Notwithstanding the foregoing, there shall be no requirement to
record any assignment to the Trustee referred to in clause (iii) or (v) of the
definition of "Mortgage File," or to file any UCC assignment to the Trustee
referred to in clause (xi) of the definition of "Mortgage File," in those
jurisdictions where, in the written opinion of local counsel (which opinion
shall be an expense of the related Mortgage Loan Seller) acceptable to the
Depositor and the Trustee, such recordation and/or filing is not required to
protect the Trustee's interest in the related Mortgage Loans against sale,
further assignment, satisfaction or discharge by the related Mortgage Loan
Seller, the applicable Master Servicer, the Special Servicer, any Sub-Servicer
or the Depositor.
(d) All documents and records in the Depositor's or the applicable
Mortgage Loan Seller's possession relating to the Mortgage Loans (including
financial statements, operating statements and any other information provided by
the respective Mortgagor from time to time, but excluding the applicable
Mortgage Loan Seller's internal communications (including such communications
between the Mortgage Loan Seller and its Affiliates) and underwriting analysis
(including documents prepared by the applicable Mortgage Loan Seller or any of
its Affiliates for such purposes), draft documents, attorney-client
communications which are privileged communications or constitute legal or other
due diligence analyses and credit underwriting or due diligence analyses or
data) that (i) are not required to be a part of a Mortgage File in accordance
with the definition thereof and (ii) are reasonably necessary for the servicing
of each such Mortgage Loan, together with copies of all documents in each
Mortgage File, shall be delivered by the Depositor or the applicable Mortgage
Loan Seller to the applicable Master Servicer within 5 Business Days after the
Closing Date and shall be held by the applicable Master Servicer on behalf of
the Trustee in trust for the benefit of the Certificateholders (and as holder of
the Class A-2SFL Regular Interest and the Class A-JFL Regular Interest, the
Uncertificated Middle-Tier Interests and the Uncertificated Lower-Tier
Interests) and, if applicable, on behalf of the related Companion Holder. Such
documents and records shall be any documents and records (with the exception of
any items excluded under the immediately preceding sentence) that would
otherwise be a part of the Servicing File.
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the applicable Master
Servicer, on or before the Closing Date, a fully executed original counterpart
of each of the Mortgage Loan Purchase Agreements, as in full force and effect,
without amendment or modification, on the Closing Date.
(f) The Depositor shall use its best efforts to require that,
promptly after the Closing Date, but in all events within three Business Days
after the Closing Date, each of the Mortgage Loan Sellers shall cause all funds
on deposit in escrow accounts maintained with respect to the Mortgage Loans by
such Mortgage Loan Seller, whether such accounts are held in the name of the
applicable Mortgage Loan Seller or any other name, to be transferred to the
applicable Master Servicer (or a Sub-Servicer) for deposit into Servicing
Accounts.
(g) The Trustee hereby acknowledges the receipt by it of the Closing
Date Deposit Amount. The Trustee shall hold such Closing Date Deposit Amount in
the Distribution Account and shall include the Closing Date Deposit Amount in
the Available Distribution Amount for the initial Distribution Date. The Closing
Date Deposit Amount shall remain uninvested.
Section 2.02 Acceptance by Trustee. (a) The Trustee, by the
execution and delivery of this Agreement (1) acknowledges receipt by it or a
Custodian on its behalf, subject to the provisions of Section 2.01 and the
further review provided for in this Section 2.02 and to any exceptions noted on
the Trustee Exception Report, in good faith and without notice of any adverse
claim, of the applicable documents specified in clauses (i), (ii), (ix), (xv),
(xvi) (or, with respect to clause (xvi), a copy of such letter of credit and an
officer's certificate of the related Mortgage Loan Seller or the applicable
Master Servicer as contemplated by the third to the last sentence of Section
2.01(b) hereof) and (xxiii) of the definition of "Mortgage File" with respect to
each Mortgage Loan, of a fully executed original counterpart of each of the
Mortgage Loan Purchase Agreements, and of all other assets included in the Trust
Fund and (2) declares (a) that it or a Custodian on its behalf holds and will
hold such documents and the other documents delivered or caused to be delivered
by the Mortgage Loan Sellers that constitute the Mortgage Files, and (b) that it
holds and will hold such other assets included in the Trust Fund, in trust for
the exclusive use and benefit of all present and future Certificateholders and,
with respect to any original document in the Mortgage File for each Whole Loan,
for any present or future Companion Holder, (and for the benefit of the Trustee
as holder of the Class A-2SFL Regular Interest and the Class A-JFL Regular
Interest, the Uncertificated Middle-Tier Interests and the Uncertificated
Lower-Tier Interests), as applicable. If any Mortgage Loan Seller is unable to
deliver or cause the delivery of any original Mortgage Note, such Mortgage Loan
Seller may deliver a copy of such Mortgage Note, together with a signed lost
note affidavit and appropriate indemnity and shall thereby be deemed to have
satisfied the document delivery requirements of Sections 2.01 and 2.02.
(b) Within 90 days of the Closing Date, the Trustee or a Custodian
on its behalf, shall review the Mortgage Loan documents delivered or caused to
be delivered by the Mortgage Loan Sellers constituting the Mortgage Files; and,
promptly following such review (but in no event later than 90 days after the
Closing Date), the Trustee shall, in the form attached as Exhibit V, certify in
writing to each of the Rating Agencies, the Depositor, the Master Servicers, the
Special Servicer, the Directing Certificateholder and the Mortgage Loan Sellers
that, as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than
any Mortgage Loan paid in full) and except as specifically identified in any
exception report annexed to such writing (the "Trustee Exception Report"), (i)
all documents specified in clauses (i) through (v), (ix) through (xii) and (xvi)
(or, with respect to clause (xvi), a copy of such letter of credit and an
officer's certificate as contemplated by the third to last sentence of Section
2.01(b) hereof), if any, of the definition of "Mortgage File," as applicable,
are in its possession, (ii) the foregoing documents delivered or caused to be
delivered by the Mortgage Loan Sellers have been reviewed by it or by a
Custodian on its behalf and appear regular on their face and appear to be
executed and to relate to such Mortgage Loan, (iii) based on such examination
and only as to the foregoing documents, the information set forth in the
Mortgage Loan Schedule with respect to the items specified in clauses (iv), (vi)
and (viii)(c) in the definition of "Mortgage Loan Schedule" is correct and (iv)
the Trustee on behalf of the Trust is shown as the owner of each Mortgage
recorded in the name of MERS or its designee. With respect to each Mortgage Loan
listed on the Trustee Exception Report, the Trustee shall specifically identify
such Mortgage Loan together with the nature of such exception (in the form
reasonably acceptable to the Trustee and the related Mortgage Loan Seller and
separating items required to be in the Mortgage File but never delivered from
items which were delivered by the related Mortgage Loan Seller but are out for
filing or recording and have not been returned by the filing office or the
recorder's office).
(c) The Trustee, or a Custodian on its behalf, shall review the
Mortgage Loan documents received thereby subsequent to the Closing Date; and, on
or about the first anniversary of the Closing Date, the Trustee shall, in the
form attached as Exhibit V, certify in writing to each of the Depositor, the
Master Servicers, the Special Servicer, the Directing Certificateholder and the
applicable Mortgage Loan Seller that, as to each Mortgage Loan listed on the
Mortgage Loan Schedule (other than any Mortgage Loan as to which a Liquidation
Event has occurred) or any Mortgage Loan specifically identified in any
exception report annexed to such writing (i) all documents specified in clauses
(i) through (v), (ix) through (xii) and (xvi) (or, with respect to clause (xvi),
a copy of such letter of credit and an officer's certificate as contemplated by
the third to last sentence of Section 2.01(b) hereof), if any, of the definition
of "Mortgage File," as applicable, are in its possession, (ii) the foregoing
documents delivered or caused to be delivered by the applicable Mortgage Loan
Seller have been reviewed by it or by a Custodian on its behalf and appear
regular on their face and appear to be executed and relate to such Mortgage
Loan, and (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (iv), (vi) and (viii)(c) in the definition of
"Mortgage Loan Schedule" is correct.
(d) Notwithstanding anything contained in this Section 2.02 and
Section 2.03(b) to the contrary, in the case of a deficiency in any of the
documents specified in clauses (ii) through (v), (viii), (ix), (xi) and (xii) in
the definition of "Mortgage File" resulting solely from a delay in the return of
the related documents from the applicable filing or recording office, which
deficiency (i) is continuing for (a) in the case of any Mortgage Loan that is
not a Specially Serviced Mortgage Loan, more than eighteen (18) months following
the Closing Date or (b) in the case of any Specially Serviced Mortgage Loan,
more than thirty (30) days following a Servicing Transfer Event, and (ii)
impairs or prohibits in any material way the applicable Master Servicer's or
Special Servicer's ability to act upon, or enforce, any of the Trust Fund's
rights and remedies under the related Mortgage Loan, or Specially Serviced
Mortgage Loan, as applicable, at the time the applicable Master Servicer or
Special Servicer attempts to act upon, or enforce, any such right or remedy, at
such time the Directing Certificateholder, in its sole judgment, may permit the
related Mortgage Loan Seller, in lieu of repurchasing or substituting for the
related Mortgage Loan, to deposit with the Trustee an amount, to be held in
trust in a segregated Eligible Account, equal to 25% of the Stated Principal
Balance of the related Mortgage Loan (in the alternative, the related Mortgage
Loan Seller may deliver to the Trustee a letter of credit in such amount). Such
funds or letter of credit, as applicable, shall be held by the Trustee until the
date on which the Trustee determines that such document deficiency has been
cured or the related Mortgage Loan is no longer part of the Trust Fund, at which
time the Trustee shall return such funds (or letter of credit) to the related
Mortgage Loan Seller; provided, however, that the Trustee shall be entitled to
request a certification by the related Master Servicer and Special Servicer as
to whether any such document deficiency has been cured to the extent the related
Master Servicer and Special Servicer are able to make that determination. If the
applicable Master Servicer or the Special Servicer, as applicable, certifies to
the Trustee that it has determined in the exercise of its reasonable judgment
that the document with respect to which any such document deficiency exists is
required in connection with an imminent enforcement of the mortgagee's rights or
remedies under the related Mortgage Loan, defending any claim asserted by any
Mortgagor or third party with respect to the related Mortgage Loan, establishing
the validity or priority of any lien on collateral securing the Mortgage Loan or
for any immediate significant servicing obligation, the related Mortgage Loan
Seller shall be required to repurchase or substitute for the related Mortgage
Loan in accordance with the terms and conditions of Section 2.03(b) or Section 6
of the related Mortgage Loan Purchase Agreement; provided, however, that such
Mortgage Loan Seller shall not be required to repurchase the Mortgage Loan for a
period of ninety (90) days after receipt of a notice to repurchase (together
with any applicable extension period) if it is attempting to recover the
document from the applicable filing or recording office and provides an
officer's certificate setting forth what actions such Mortgage Loan Seller is
pursuing in connection with such recovery. In the event of a repurchase or
substitution, upon such date, the Trustee shall deposit, or cause the applicable
Master Servicer to deposit, such funds, or shall draw upon the letter of credit
and deposit the proceeds of such draw, into the Certificate Account to be
applied to the Purchase Price (or the Substitution Shortfall Amount, if
applicable, in which event the amount of such funds or proceeds which exceed the
Substitution Shortfall Amount shall be returned to the Mortgage Loan Seller) in
accordance with Section 2.03(b). All such funds deposited with the Trustee shall
be invested in Permitted Investments, at the direction and for the benefit of
the related Mortgage Loan Seller. Such funds shall be treated as an "outside
reserve fund" under the REMIC Provisions, which, together with any reimbursement
from the Lower-Tier REMIC, is beneficially owned by the related Mortgage Loan
Seller for federal income tax purposes, which Mortgage Loan Seller shall remain
liable for any taxes payable on income or gain with respect thereto. If the
Mortgage, Assignment of Leases, UCC Financing Statement or other instrument
related to the Mortgage Loan to be repurchased or substituted has been recorded
in the name of MERS or its designee, the applicable Master Servicer shall use
reasonable efforts to reflect the transfer of such Mortgage or other instrument
to the related Mortgage Loan Seller on the records of MERS.
(e) It is herein acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation (i) to determine whether any of the
documents specified in clauses (vi), (vii), (viii), (xiii), (xiv), (xv) through
(xxi) and (xxiii) of the definition of "Mortgage File" exist or are required to
be delivered by the Depositor, the Mortgage Loan Sellers or any other Person
(unless identified on the Mortgage Loan Checklist) or (ii) to inspect, review or
examine any of the documents, instruments, certificates or other papers relating
to the Mortgage Loans delivered to it to determine that the same are genuine,
enforceable, sufficient to perfect and maintain the perfection of a security
interest or appropriate for the represented purpose or that they are other than
what they purport to be on their face and, with respect to the documents
specified in clause (ix), whether the insurance is effective as of the date of
the recordation of the related Mortgage, whether all endorsements or riders
issued are included in the file or if the policy has not been issued whether any
acceptable replacement document has been dated the date of the related Mortgage
Loan funding. Further, with respect to the UCC financing statements referenced
in the Mortgage File, absent actual knowledge to the contrary or copies of UCC
financing statements delivered to the Trustee as part of the Mortgage File
indicating otherwise, the Trustee may assume, for the purposes of the filings
and the certification to be delivered in accordance with this Section 2.02 that
the related Mortgage File should include one state level UCC financing statement
filing for each Mortgagor, except to the extent multiple Mortgagors which are
located in the same state are named as debtors in the same UCC financing
statement filing), or if the Trustee has received notice that a particular UCC
financing statement was filed as a fixture filing, that the related Mortgage
File should include only a local UCC financing statement filing for each
Mortgaged Property (or with respect to any Mortgage Loan that has two or more
Mortgagors, for each Mortgagor, except to the extent multiple Mortgagors are
named as debtors in the same UCC financing statement filing). The assignments of
the UCC financing statements to be assigned to the Trust will be delivered on
the new national forms (or on such other form as may be acceptable for filing or
recording in the applicable jurisdiction) and in a format suitable for filing or
recording, as applicable, and will be filed or recorded in the jurisdiction(s)
where such UCC financing statements were originally filed or recorded, as
indicated in the documents provided, and in accordance with then current laws.
(f) If, in the process of reviewing the Mortgage Files or at any
time thereafter, the Trustee or any Custodian finds any document or documents
constituting a part of a Mortgage File (1) not to have been properly executed or
(2) subject to Section 2.01(b) and (c), not to have been delivered, (3) to
contain information that does not conform in any material respect with the
corresponding information set forth in the Mortgage Loan Schedule or (4) to be
defective on its face (each, a "Defect" in the related Mortgage File), the
Trustee shall promptly so notify the Depositor, the applicable Master Servicer,
the Special Servicer, the Directing Certificateholder and the applicable
Mortgage Loan Seller, (and in no event later than 90 days after the Closing Date
and every quarter thereafter, commencing with the quarter ending June 30, 2007
until March 31, 2009), by providing a written report (the "Trustee Exception
Report") setting forth for each affected Mortgage Loan, with particularity, the
nature of such Defect (in a form reasonably acceptable to the Trustee and such
Mortgage Loan Seller and separating items required to be in the Mortgage File
but never delivered from items which were delivered by such Mortgage Loan Seller
but are out for recording or filing and have not been returned by the recorder's
office or filing office).
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or Substitution of Mortgage Loans
for Defects in Mortgage Files and Breaches of Representations and Warranties.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and the
Depositor has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this
Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a party or by
which it is bound, or any order or decree applicable to the Depositor, or
result in the creation or imposition of any lien on any of the Depositor's
assets or property, which would materially and adversely affect the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; the Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor of
this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Mortgage Loans or the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans with the
full right to transfer the Mortgage Loans to the Trust and the Mortgage
Loans have been validly transferred to the Trust.
(b) If any Certificateholder, the applicable Master Servicer, the
Special Servicer or the Trustee discovers (without implying any duty of such
person to make, or to attempt to make, such a discovery) or receives notice of a
Defect in any Mortgage File or a breach of any representation or warranty with
respect to a Mortgage Loan set forth in, or required to be made with respect to,
a Mortgage Loan by the applicable Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement (a "Breach"), which Defect or Breach, as the
case may be, materially and adversely affects the value of any Mortgage Loan,
the value of the related Mortgaged Property or the interests of the Trustee or
any Certificateholder therein, such Certificateholder, the applicable Master
Servicer, the Special Servicer, the Trustee or the Directing Certificateholder,
as applicable, shall give prompt written notice of such Defect or Breach, as the
case may be, to the Depositor, the applicable Master Servicer, the Special
Servicer, the applicable Mortgage Loan Seller, the Trustee and the Directing
Certificateholder and shall request in writing that the applicable Mortgage Loan
Seller, not later than 90 days after the earlier of (i) the applicable Mortgage
Loan Seller's receipt of such notice or (ii) in the case of a Defect or Breach
relating to a Mortgage Loan not being a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code, but without regard to the rule of Treasury
Regulation Section 1.860G-2(f)(2) that causes a defective mortgage loan to be
treated as a qualified mortgage, the applicable Mortgage Loan Seller's discovery
of such Defect or Breach (the "Initial Cure Period") that materially and
adversely affects the value of any Mortgage Loan, the value of the related
Mortgaged Property or the interests of the Trustee or any Certificateholder
therein, (i) cure such Defect or Breach, as the case may be, in all material
respects, (ii) repurchase the affected Mortgage Loan or REO Loan at the
applicable Purchase Price and in conformity with the applicable Mortgage Loan
Purchase Agreement and this Agreement or (iii) substitute a Qualified Substitute
Mortgage Loan (other than with respect to any Serviced Mortgage Loan, for which
no substitution will be permitted) for such affected Mortgage Loan or REO Loan
(provided that in no event shall any such substitution occur on or after the
second anniversary of the Closing Date) and pay the applicable Master Servicer
for deposit into the related Certificate Account, any Substitution Shortfall
Amount in connection therewith and in conformity with the applicable Mortgage
Loan Purchase Agreement and this Agreement; provided, however, that if such
Breach or Defect is capable of being cured but is not cured within the Initial
Cure Period, and the applicable Mortgage Loan Seller has commenced and is
diligently proceeding with the cure of such Breach or Defect within the Initial
Cure Period, the applicable Mortgage Loan Seller shall have an additional 90
days commencing immediately upon the expiration of the Initial Cure Period (such
additional 90 day period, the "Extended Cure Period") to complete such cure (or,
failing such cure, to repurchase the related Mortgage Loan or REO Loan or
substitute a Qualified Substitute Mortgage Loan) (other than with respect to any
Serviced Mortgage Loan, for which no substitution will be permitted) and
provided, further, that with respect to such Extended Cure Period the applicable
Mortgage Loan Seller shall have delivered an officer's certificate to the
Trustee (who shall promptly deliver a copy of such officer's certificate to the
Rating Agencies, the applicable Master Servicer, the Special Servicer and the
Directing Certificateholder), setting forth the reason such Breach or Defect is
not capable of being cured within the Initial Cure Period and what actions the
applicable Mortgage Loan Seller is pursuing in connection with the cure thereof
and stating that the applicable Mortgage Loan Seller anticipates that such
Breach or Defect will be cured within the Extended Cure Period. Notwithstanding
the foregoing, any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code, but
without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that
causes a defective mortgage loan to be treated as a qualified mortgage) shall be
deemed to materially and adversely affect the interests of Certificateholders
therein, and such Mortgage Loan shall be repurchased or substituted for without
regard to the Extended Cure Period described in the preceding sentence. If the
affected Mortgage Loan is to be repurchased, the funds in the amount of the
Purchase Price remitted by the applicable Mortgage Loan Seller are to be
deposited by wire transfer to the applicable Certificate Account. If any Breach
pertains to a representation or warranty that the related Mortgage Loan
documents or any particular Mortgage Loan document requires the related
Mortgagor to bear the costs and expenses associated with any particular action
or matter under such Mortgage Loan document(s), then the related Mortgage Loan
Seller shall cure such Breach within the applicable cure period (as the same may
be extended) by reimbursing the Trust Fund (by wire transfer of immediately
available funds) the reasonable amount of any such costs and expenses incurred
by the applicable Master Servicer, the Special Servicer, the Trustee or the
Trust Fund that are the basis of such Breach and have not been reimbursed by the
related Mortgagor; provided, however, that in the event any such costs and
expenses exceed $10,000, the related Mortgage Loan Seller shall have the option
to either repurchase or substitute for the related Mortgage Loan as provided
above or pay such costs and expenses. Except as provided in the proviso to the
immediately preceding sentence, the related Mortgage Loan Seller shall remit the
amount of such costs and expenses and upon its making such remittance, the
related Mortgage Loan Seller shall be deemed to have cured such Breach in all
respects. To the extent any fees or expenses that are the subject of a cure by
the related Mortgage Loan Seller are subsequently obtained from the related
Mortgagor, the portion of the cure payment made by the related Mortgage Loan
Seller equal to such fees or expenses obtained from the Mortgagor shall be
returned to the related Mortgage Loan Seller pursuant to Section 2.03(f) below.
Monthly Payments due with respect to each Qualified Substitute Mortgage Loan (if
any) after the related Due Date in the month of substitution, and Monthly
Payments due with respect to each Mortgage Loan being repurchased or replaced
after the related Cut-off Date and received by the applicable Master Servicer or
the Special Servicer on behalf of the Trust on or prior to the related date of
repurchase or substitution, shall be part of the Trust Fund. Monthly Payments
due with respect to each Qualified Substitute Mortgage Loan (if any) on or prior
to the related Due Date in the month of substitution, and Monthly Payments due
with respect to each Mortgage Loan being repurchased or replaced and received by
the applicable Master Servicer or the Special Servicer on behalf of the Trust
after the related date of repurchase or substitution, shall not be part of the
Trust Fund and are to be remitted by the applicable Master Servicer to the
Mortgage Loan Seller effecting the related repurchase or substitution promptly
following receipt.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Defect" and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in a Mortgage Loan and to
be deemed to materially and adversely affect the interest of the
Certificateholders in and the value of a Mortgage Loan: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity that appears to be regular
on its face; (b) the absence from the Mortgage File of the original signed
Mortgage (including any related assignments) that appears to be regular on its
face, unless there is included in the Mortgage File a certified copy of the
Mortgage and a certificate stating that the original signed Mortgage was sent
for recordation; (c) the absence from the Mortgage File of the item called for
by paragraph (ix) of the definition of Mortgage File; (d) the absence from the
Mortgage File of any intervening assignments required to create a complete chain
of assignment to the Trustee on behalf of the Trust, unless there is included in
the Mortgage File a certified copy of each such missing intervening assignment
and a certificate stating that the original intervening assignment was sent for
filing or recordation, as applicable; (e) the absence from the Mortgage File of
any required letter of credit; or (f) with respect to any leasehold mortgage
loan, the absence from the related Mortgage File of a copy (or an original, if
available) of the related Ground Lease; provided, however, that no Defect
(except the Defects previously described in clauses (a) through (f)) shall be
considered to materially and adversely affect the value of the related Mortgage
Loan, the value of the related Mortgaged Property or the interests of the
Trustee or Certificateholders unless the document with respect to which the
Defect exists is required in connection with an imminent enforcement of the
mortgagee's rights or remedies under the related Mortgage Loan, defending any
claim asserted by any Mortgagor or third party with respect to the Mortgage
Loan, establishing the validity or priority of any lien on any collateral
securing the Mortgage Loan or for any immediate significant servicing
obligation. Notwithstanding the foregoing, the delivery of executed escrow
instructions or a binding commitment to issue a lender's title insurance policy,
as provided in clause (ix) of the definition of Mortgage File herein, in lieu of
the delivery of the actual policy of lender's title insurance, shall not be
considered a Defect or Breach with respect to any Mortgage File if such actual
policy is delivered to the Trustee or a Custodian on its behalf not later than
18 months following the Closing Date.
(c) In connection with any repurchase of, or substitution of a
Qualified Substitute Mortgage Loan for, a Mortgage Loan contemplated by this
Section 2.03, the Trustee, the applicable Master Servicer and the Special
Servicer shall each tender to the applicable Mortgage Loan Seller, upon delivery
to each of the Trustee, the applicable Master Servicer and the Special Servicer
of a trust receipt executed by the applicable Mortgage Loan Seller evidencing
such repurchase or substitution, all portions of the Mortgage File and other
documents pertaining to such Mortgage Loan possessed by each of the Trustee, the
applicable Master Servicer and the Special Servicer, and each document that
constitutes a part of the Mortgage File that was endorsed or assigned to the
Trustee shall be endorsed or assigned, as the case may be, to the applicable
Mortgage Loan Seller in the same manner as provided in Section 6 of the related
Mortgage Loan Purchase Agreement, so as to vest in such Mortgage Loan Seller the
legal and beneficial ownership of such repurchased or substituted for Mortgage
Loan (including property acquired in respect thereof or proceeds of any
insurance policy with respect thereto) and the related Mortgage Loan documents,
and if the Mortgage, Assignment of Leases, UCC Financing Statement or other
instrument related to the Mortgage Loan has been recorded in the name of MERS or
its designee, the applicable Master Servicer shall use reasonable efforts to
reflect the transfer of such Mortgage or other instrument to such Mortgage Loan
Seller on the records of MERS.
(d) Section 6(e) of each of the Mortgage Loan Purchase Agreements
provides the sole remedy available to the Certificateholders (subject to the
limitations on the rights of the Certificateholders under this Agreement), or
the Trustee on behalf of the Certificateholders, with respect to any Defect in a
Mortgage File or any Breach of any representation or warranty with respect to a
Mortgage Loan set forth in or required to be made pursuant to Section 6 of such
Mortgage Loan Purchase Agreement.
(e) The Special Servicer shall, for the benefit of the
Certificateholders and the Trustee (as holder of the Class A-2SFL Regular
Interest and the Class A-JFL Regular Interest, the Uncertificated Middle-Tier
Interests and the Uncertificated Lower-Tier Interests), enforce the obligations
of the applicable Mortgage Loan Seller under the applicable Mortgage Loan
Purchase Agreement. Such enforcement, including, without limitation, the legal
prosecution of claims, shall be carried out in such form, to such extent and at
such time as the Special Servicer would require were it, in its individual
capacity, the owner of the affected Mortgage Loan(s). Any costs incurred by the
Special Servicer with respect to the enforcement of the obligations of the
applicable Mortgage Loan Seller under the applicable Mortgage Loan Purchase
Agreement shall be deemed to be Servicing Advances to the extent not otherwise
provided herein. The Special Servicer shall be reimbursed for the reasonable
costs of such enforcement: first, from a specific recovery, if any, of costs,
expenses or attorneys' fees against the applicable Mortgage Loan Seller; second,
pursuant to Section 3.05(a)(vii) herein out of the related Purchase Price, to
the extent that such expenses are a specific component thereof; and third, if at
the conclusion of such enforcement action it is determined that the amounts
described in clauses first and second are insufficient, then pursuant to Section
3.05(a)(viii) herein out of general collections on the Mortgage Loans on deposit
in the Certificate Account.
(f) If a Mortgage Loan Seller incurs any expense in connection with
the curing of a Breach, which also constitutes a default under the related
Mortgage Loan and is reimbursable thereunder, such Mortgage Loan Seller shall
have a right, and shall be subrogated to the rights of the Trustee and the Trust
Fund under the Mortgage Loan, to recover the amount of such expenses from the
related Mortgagor; provided, however, that such Mortgage Loan Seller's rights
pursuant to this Section 2.03(f) shall be junior, subject and subordinate to the
rights of the Trustee, the Trust Fund, the applicable Master Servicer and the
Special Servicer to recover amounts owed by the related Mortgagor under the
terms of such Mortgage Loan, including, without limitation, the rights to
recover unreimbursed Advances, accrued and unpaid interest on Advances at the
Reimbursement Rate and unpaid or unreimbursed expenses of the Trustee, the Trust
Fund, the applicable Master Servicer or the Special Servicer allocable to such
Mortgage Loan. The applicable Master Servicer or, with respect to a Specially
Serviced Mortgage Loan, the Special Servicer, shall use reasonable efforts to
recover such expenses for such Mortgage Loan Seller to the extent consistent
with the Servicing Standards, but taking into account the subordinate nature of
the reimbursement to the Mortgage Loan Seller; provided, however, that the
applicable Master Servicer or, with respect to a Specially Serviced Mortgage
Loan, the Special Servicer, determines in the exercise of its sole discretion
consistent with the Servicing Standards that such actions by it will not impair
the applicable Master Servicer's and/or the Special Servicer's collection or
recovery of principal, interest and other sums due with respect to the related
Mortgage Loan which would otherwise be payable to the applicable Master
Servicer, the Special Servicer, the Trustee and the Certificateholders pursuant
to the terms of this Agreement; provided, further, that the applicable Master
Servicer or, with respect to a Specially Serviced Mortgage Loan, the Special
Servicer, may waive the collection of amounts due on behalf of the Mortgage Loan
Seller in its sole discretion in accordance with the Servicing Standards.
(g) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described in this Section, (ii) such Mortgage Loan
is a Crossed Loan, and (iii) the applicable Defect or Breach does not constitute
a Defect or Breach, as the case may be, as to any other Crossed Loan in such
Crossed Group (without regard to this paragraph), then the applicable Defect or
Breach, as the case may be, will be deemed to constitute a Defect or Breach, as
the case may be, as to any other Crossed Loan in the Crossed Group for purposes
of this paragraph, and the related Mortgage Loan Seller shall be required to
repurchase or substitute for such other Crossed Loan(s) in the related Crossed
Group as provided in Section 2.03(b) unless such other Crossed Loans satisfy the
Crossed Loan Repurchase Criteria. In the event that the remaining Crossed Loans
in such Crossed Group satisfy the aforementioned criteria, the applicable
Mortgage Loan Seller may elect either to repurchase or substitute for only the
affected Crossed Loan as to which the related Breach or Defect exists or to
repurchase or substitute for all of the Crossed Loans in the related Crossed
Group. For the avoidance of doubt, the Mortgage Loan affected by the applicable
Breach or Defect and Qualified Substitute Mortgage Loan, if any, must satisfy
all other criteria for repurchase and substitution of Mortgage Loans set forth
herein. Any reserve or other cash collateral or letters of credit securing the
Crossed Loans shall be allocated between such Mortgage Loans in accordance with
the related Mortgage Loan documents or otherwise on a pro rata basis based upon
their outstanding Stated Principal Balances. Except as provided in Section
2.03(h), all other terms of the Mortgage Loans shall remain in full force and
effect without any modification thereof.
(h) With respect to any Crossed Loan, to the extent that the
applicable Mortgage Loan Seller is required to repurchase or substitute for such
Mortgage Loan in the manner prescribed in Section 2.03(g) while the Trustee
continues to hold any other Crossed Loans in the related Crossed Group, the
applicable Mortgage Loan Seller and the Trustee, as assignee of the Depositor,
will, as set forth in the related Mortgage Loan Purchase Agreement, forbear from
enforcing any remedies against the other's Primary Collateral but each will be
permitted to exercise remedies against the Primary Collateral securing its
respective Mortgage Loans, including with respect to the Trustee, the Primary
Collateral securing Mortgage Loans still held by the Trustee, so long as such
exercise does not materially impair the ability of the other party to exercise
its remedies against its Primary Collateral. If the exercise of the remedies by
one party would materially impair the ability of the other party to exercise its
remedies with respect to the Primary Collateral securing the Crossed Loans held
by such party, then both parties have agreed in the related Mortgage Loan
Purchase Agreement to forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Mortgage Loans can be
modified in a manner that complies with the Mortgage Loan Purchase Agreement to
remove the threat of material impairment as a result of the exercise of
remedies.
(i) Notwithstanding the foregoing, if there is a material Breach or
a material Defect with respect to a Mortgaged Property (but not all of the
Mortgaged Properties) that secure a Mortgage Loan or group of Crossed Loans, the
applicable Mortgage Loan Seller will not be obligated to repurchase the Mortgage
Loan or group of Crossed Loans, provided that (i) the affected Mortgaged
Property may be released pursuant to the terms of any partial release provisions
in the related Mortgage Loan documents (and such Mortgaged Property is, in fact,
released pursuant to such terms), (ii) the Mortgage Loan or the group of Crossed
Loans, as applicable, including the remaining Mortgaged Property(ies) fully
comply with and satisfy the terms, conditions and requirements set forth in the
Mortgage Loan documents, this Agreement, the related Mortgage Loan Purchase
Agreement and, in the case of a group of Crossed Loans, the Crossed Loan
Repurchase Criteria, (iii) in connection with such partial release, the related
Mortgage Loan Seller obtains an Opinion of Counsel (at such Mortgage Loan
Seller's expense) to the effect that the contemplated action will not, with
respect to the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC
created hereunder, endanger such status or result in the imposition of any tax
and (iv) in connection with such partial release, the related Mortgage Loan
Seller delivers or causes to be delivered to the Custodian original
modifications to the Mortgage prepared and executed in connection with such
partial release.
Section 2.04 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests. The Trustee hereby acknowledges the assignment to it of
the Mortgage Loans and, subject to Sections 2.01 and 2.02, the delivery to it,
or a Custodian on its behalf, of the Mortgage Files and a fully executed
original counterpart of each of the Mortgage Loan Purchase Agreements, together
with the assignment to it of all of the other assets included in the Lower-Tier
REMIC. Concurrently with such assignment and delivery, and in exchange for the
Mortgage Loans (exclusive of Excess Interest), receipt of which is hereby
acknowledged, the Trustee (i) acknowledges the issuance of the Uncertificated
Lower-Tier Interests by the Trustee to the Depositor and (ii) acknowledges the
authentication and delivery of the Class LR Certificates by the Trustee to or
upon the order of the Depositor, (iii) acknowledges the issuance of the
Uncertificated Middle-Tier Interests by the Trustee to the Depositor and (ii)
acknowledges the authentication and delivery of the Class MR Certificates by the
Trustee to or upon the order of the Depositor, (iv) acknowledges the
contribution by the Depositor of the Uncertificated Lower-Tier Interests to the
Middle-Tier REMIC, (v) acknowledges the contribution by the Depositor of the
Uncertificated Middle-Tier Interests to the Upper-Tier REMIC and (vi)
immediately thereafter, the Trustee acknowledges that it has caused the
Certificate Registrar to execute and caused the Authenticating Agent to
authenticate and to deliver to or upon the order of the Depositor, in exchange
for the Uncertificated Lower-Tier Interests, the Regular Certificates (other
than the Class A-2SFL Certificates and the Class A-JFL Certificates) and the
Class R Certificates as to which the Trustee acknowledges authentication and
delivery by the Trustee, to or upon the order of the Depositor, and the Class
A-2SFL Regular Interest and the Class A-JFL Regular Interest, and the Depositor
hereby acknowledges the receipt by it or its designees, of such Certificates and
the Class A-2SFL Regular Interest and the Class A-JFL Regular Interest in
authorized Denominations evidencing the entire beneficial ownership of the
Upper-Tier REMIC.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the Class A-2SFL
Regular Interest and the Class A-JFL Regular Interest to the Trustee for the
benefit of the respective Holders of the Class A-2SFL Certificates and the Class
A-JFL Certificates, respectively. The Trustee (i) acknowledges the assignment to
it of the Class A-2SFL Regular Interest and the Class A-JFL Regular Interest and
acknowledges that it has executed the Swap Contracts, (ii) declares that it
holds and will hold the Class A-2SFL and Class A-JFL Regular Interests and
respective Swap Contract in trust for the exclusive use and benefit of all
present and future Holders of the Class A-2SFL Certificates and the Class A-JFL
Certificates and (iii) declares that it has caused the Certificate Registrar to
execute, and has caused the Authenticating Agent to authenticate and to deliver
to or upon the order of the Depositor, in exchange for the Class A-2SFL Regular
Interest and the Class A-JFL Regular Interest and for entering into the
respective Swap Contracts, and the Depositor hereby acknowledges the receipt by
it or its designees of the Class A-2SFL Certificates and Class A-JFL
Certificates in authorized Denominations. In exchange for the Excess Interest,
the Trustee acknowledges that it has caused the Certificate Registrar to execute
and caused the Authenticating Agent to authenticate and to deliver to or upon
the order of the Depositor the Class S Certificates in authorized Denominations.
Section 2.05 Grantor Trust Designations. The Class S Certificates
are hereby designated as undivided beneficial interests in the portion of the
Trust Fund consisting of Excess Interest, the Excess Interest Distribution
Account and proceeds thereof, which portion shall be treated as part of a
grantor trust within the meaning of subpart E, Part I of subchapter J of the
Code. The Class A-2SFL Certificates and the Class A-JFL Certificates are hereby
designated as undivided beneficial interests in the portion of the Trust Fund
consisting of the Class A-2SFL Regular Interest and the Class A-JFL Regular
Interest, respectively, the respective Swap Contracts and Floating Rate Accounts
and the proceeds thereof, which portion shall be treated as part of a grantor
trust within the meaning of subpart E, Part I of subchapter J of the Code.
[End of Article II]
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration of the Mortgage Loans. (a)
Each of the Master Servicers and the Special Servicer shall diligently service
and administer the Mortgage Loans and the Companion Loans it is obligated to
service pursuant to this Agreement on behalf of the Trust and in the best
interests of and for the benefit of the Certificateholders and, in the case of
the Companion Loans, the related Companion Holders and the Trustee (as holder of
the Class A-2SFL Regular Interest and the Class A-JFL Regular Interest and the
Uncertificated Lower Tier Interests), as a collective whole, taking into account
the subordinate or pari passu nature of the related Companion Loans, as the case
may be (as determined by the applicable Master Servicer or the Special Servicer,
as the case may be, in its good faith and reasonable judgment), in accordance
with applicable law, the terms of this Agreement and, with respect to each
Serviced Whole Loan, the related Intercreditor Agreement and the terms of the
respective Mortgage Loans. Notwithstanding anything herein to the contrary, the
parties hereto acknowledge and agree that the applicable Master Servicer's and
the Special Servicer's obligations, responsibilities and authority with respect
to the Mezz Cap AB Mortgage Loan are limited by and subject to the terms of the
related Mezz Cap AB Mortgage Loan Intercreditor Agreement. The applicable Master
Servicer (or, with respect to any Specially Serviced Mortgage Loan, the Special
Servicer) shall use reasonable efforts consistent with the Servicing Standards
to enforce the rights of the Trust Fund (as holder of the Mezz Cap AB Mortgage
Loan) under the related Mezz Cap AB Mortgage Loan Intercreditor Agreement. Any
cost and expenses associated with such enforcement of the Trust Fund's rights
against the Companion Holder shall be an expense of the Trust Fund to the extent
not otherwise provided in the related Intercreditor Agreement. With respect to
each Serviced Whole Loan, in the event of a conflict between this Agreement and
the related Intercreditor Agreement, the related Intercreditor Agreement shall
control; provided, in no event shall the applicable Master Servicer or the
Special Servicer take any action in accordance with the terms of any
Intercreditor Agreement that would cause the applicable Master Servicer or the
Special Servicer, as the case may be, to violate the Servicing Standards or the
REMIC Provisions.
To the extent consistent with the foregoing, each Master Servicer
and the Special Servicer shall service the Mortgage Loans in accordance with the
applicable Servicing Standards. The "Servicing Standards" mean with respect to
any Master Servicer or Special Servicer, the servicing of the Mortgage Loans in
accordance with the higher of the following standards of care: (1) in the same
manner in which, and with the same care, skill, prudence and diligence with
which such Master Servicer or the Special Servicer, as the case may be, services
and administers similar mortgage loans for other third party portfolios and (2)
the same care, skill, prudence and diligence with which such Master Servicer or
the Special Servicer, as the case may be, services and administers similar
mortgage loans owned by such Master Servicer or the Special Servicer, as the
case may be, with a view to the maximization of timely recovery of principal and
interest on a net present value basis on the Mortgage Loans or the Specially
Serviced Mortgage Loans, as applicable, and the best interests of the Trust and
the Certificateholders (and in the case of a Serviced Whole Loan, the related
Companion Holder, taking into account the subordinate or pari passu nature of
the related Companion Loan), as determined by such Master Servicer or the
Special Servicer, as the case may be, in its reasonable judgment, in either
case, giving due consideration to the customary and usual standards of practice
of prudent institutional, multifamily and commercial mortgage loan servicers,
but without regard to: (i) any relationship that such Master Servicer, the
Special Servicer or any Affiliate of such Master Servicer or the Special
Servicer may have with any Mortgagor or any Affiliate of such Mortgagor, any
Mortgage Loan Seller or any other parties to this Agreement; (ii) the ownership
of any Certificate or Companion Loan by such Master Servicer, the Special
Servicer or any Affiliate of such Master Servicer or Special Servicer, as
applicable; (iii) the adequacy of such Master Servicer's or the Special
Servicer's, as the case may be, right to receive compensation for its services
and reimbursement for its costs hereunder or with respect to any particular
transaction; (iv) the ownership, servicing or management for others of any other
mortgage loans or mortgaged properties by such Master Servicer or Special
Servicer; (v) any obligation of such Master Servicer or any of its affiliates
(in their capacity as a Mortgage Loan Seller) to cure a breach of a
representation or warranty or document defect with respect to, or repurchase or
substitute for the Mortgage Loan; (vi) any other debt such Master Servicer or
the Special Servicer or any of its Affiliates has extended to any Mortgagor or
any of its Affiliates; (vii) any obligation of such Master Servicer or any of
its Affiliates to make Advances; and (viii) any option to purchase any Mortgage
Loan or Companion Loan by either Master Servicer or the Special Servicer or any
of their Affiliates.
Without limiting the foregoing, subject to Section 3.21, (1) Master
Servicer No. 1 shall be obligated to service and administer all Group A Mortgage
Loans (other than any Non-Serviced Mortgage Loan) which, in each case, do not
constitute Specially Serviced Mortgage Loans, (2) Master Servicer No. 2 shall be
obligated to service and administer all Group B Mortgage Loans which, in each
case, do not constitute Specially Serviced Mortgage Loans, and (3) the Special
Servicer shall be obligated to service and administer (i) any Mortgage Loans
(other than the Non-Serviced Mortgage Loans) and Companion Loans as to which a
Servicing Transfer Event has occurred and is continuing (the "Specially Serviced
Mortgage Loans") and (ii) any REO Properties (except with respect to the Skyline
Portfolio Mortgaged Property, the Solana Mortgaged Property and the Americold
Pool 2 Mortgaged Property); provided, that the applicable Master Servicer shall
continue to receive payments and make all calculations, and prepare, or cause to
be prepared, all reports, required hereunder with respect to the Specially
Serviced Mortgage Loans, except for the reports specified herein as prepared by
the Special Servicer, as if no Servicing Transfer Event had occurred and with
respect to the REO Properties (and the related REO Loans) as if no REO
Acquisition had occurred, and to render such services with respect to such
Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for herein; provided further, however, that the applicable Master
Servicer shall not be liable for failure to comply with such duties insofar as
such failure results from a failure of the Special Servicer to provide
sufficient information to the applicable Master Servicer to comply with such
duties or failure by the Special Servicer to otherwise comply with its
obligations hereunder. Neither Master Servicer will have any responsibility for
the performance by the Special Servicer of its duties under this Agreement or
the performance by the other Master Servicer of its duties under this Agreement.
Each Mortgage Loan or Companion Loan that becomes a Specially Serviced Mortgage
Loan shall continue as such until satisfaction of the conditions specified in
Section 3.21(a). Without limiting the foregoing, subject to Section 3.21, the
applicable Master Servicer shall be obligated to service and administer all
related Mortgage Loans (other than the Non-Serviced Mortgage Loans) and
Companion Loans, which are not Specially Serviced Mortgage Loans. The Special
Servicer shall make the inspections, use its reasonable efforts to collect the
statements and forward to the applicable Master Servicer the reports in respect
of the related Mortgaged Properties with respect to Specially Serviced Mortgage
Loans in accordance with Section 3.12. After notification to the applicable
Master Servicer, the Special Servicer may contact the Mortgagor of any
Non-Specially Serviced Mortgage Loan if efforts by the applicable Master
Servicer to collect required financial information have been unsuccessful or any
other issues remain unresolved. Such contact shall be coordinated through and
with the cooperation of the applicable Master Servicer. No provision herein
contained shall be construed as an express or implied guarantee by the Master
Servicers or the Special Servicer of the collectability or recoverability of
payments on the Mortgage Loans or shall be construed to impair or adversely
affect any rights or benefits provided by this Agreement to the Master Servicers
or the Special Servicer (including with respect to Servicing Fees, Special
Servicing Fees or the right to be reimbursed for Advances and interest accrued
thereon). Any provision in this Agreement for any Advance by the applicable
Master Servicer or the Co-Trustee is intended solely to provide liquidity for
the benefit of the Certificateholders and not as credit support or otherwise to
impose on any such Person the risk of loss with respect to one or more of the
Mortgage Loans. No provision hereof shall be construed to impose liability on
the Master Servicers or the Special Servicer for the reason that any recovery to
the Certificateholders in respect of a Mortgage Loan at any time after a
determination of present value recovery is less than the amount reflected in
such determination.
(b) Subject only to the Servicing Standards and the terms of this
Agreement and of the respective Mortgage Loans and, if applicable, the Companion
Loans, and any applicable Intercreditor Agreements (and intercreditor agreements
entered into after the Closing Date with respect to any Mortgage Loan in
connection with mezzanine debt permitted under the related Mortgage Loan
documents), and applicable law, the Master Servicers and the Special Servicer
each shall have full power and authority, acting alone or, in the case of any
Master Servicer, subject to Section 3.22, through one or more Sub-Servicers, to
do or cause to be done any and all things in connection with such servicing and
administration for which it is responsible which it may deem necessary or
desirable. Without limiting the generality of the foregoing, each of the Master
Servicers and the Special Servicer, in its own name (or in the name of the
Trustee and, if applicable, the Companion Holder), is hereby authorized and
empowered by the Trustee to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, with respect to each Mortgage
Loan (and, with respect to a Companion Loan, the Companion Holder) it is
obligated to service under this Agreement: (i) any and all financing statements,
continuation statements and other documents or instruments necessary to maintain
the lien created by the related Mortgage or other security document in the
related Mortgage File on the related Mortgaged Property and related collateral;
(ii) subject to Sections 3.08 and 3.20, any and all modifications, waivers,
amendments or consents to, under or with respect to any documents contained in
the related Mortgage File; and (iii) any and all instruments of satisfaction or
cancellation, pledge agreements and other documents in connection with a
defeasance, or of partial or full release or discharge, and all other comparable
instruments. Subject to Section 3.10, the Trustee shall furnish, or cause to be
furnished, to the Master Servicers or the Special Servicer any powers of
attorney and other documents necessary or appropriate to enable the Master
Servicers or the Special Servicer, as the case may be, to carry out its
servicing and administrative duties hereunder; provided, however, that the
Trustee shall not be held liable for any negligence with respect to, or misuse
of, any such power of attorney by the Master Servicers or the Special Servicer.
Notwithstanding anything contained herein to the contrary, each Master Servicer
or the Special Servicer, as the case may be, shall not, without the Trustee's
written consent: (i) initiate any action, suit or proceeding solely under the
Trustee's name without indicating such Master Servicer's or the Special
Servicer's, as the case may be, representative capacity or (ii) take any action
with the intent to cause, and that actually causes, the Trustee to be required
to be registered to do business in any state.
(c) To the extent each Master Servicer is permitted pursuant to the
terms of the related Mortgage Loan documents or Companion Loan documents
(including the related Intercreditor Agreement) to exercise its discretion with
respect to any action which requires a confirmation of the Rating Agencies that
such action will not result in the downgrade, withdrawal or qualification of the
ratings of any Class of Certificates (or of any class of Companion Loan
Securities), such Master Servicer shall require the costs of such written
confirmation to be borne by the related Mortgagor. To the extent the terms of
the related Mortgage Loan documents or Companion Loan documents require the
Mortgagor to bear the costs of any confirmation of the Rating Agencies that an
action will not result in the downgrade, withdrawal or qualification of the
ratings of any Class of Certificates (or of any class of Companion Loan
Securities), the applicable Master Servicer shall not waive the requirement that
such costs and expenses be borne by the related Mortgagor. To the extent that
the terms of the related Mortgage Loan documents or Companion Loan documents are
silent as to who bears the costs of any confirmation of the Rating Agencies that
an action will not result in the downgrade, withdrawal or qualification of the
ratings of any Class of Certificates (or of any class of Companion Loan
Securities), the applicable Master Servicer shall use reasonable efforts to have
the Mortgagor bear such costs and expenses. Each Master Servicer shall not be
responsible for the payment of such costs and expenses out of pocket.
(d) The relationship of each of the Master Servicers and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
(e) Each Master Servicer shall, to the extent permitted by the
related Mortgage Loan documents and Companion Loan documents and consistent with
the Servicing Standards, permit Escrow Payments to be invested only in Permitted
Investments.
(f) Within 60 days (or such shorter time period as is required by
the terms of the applicable Mortgage Loan documents) after the later of (i) the
receipt thereof and (ii) the Closing Date, (A) the applicable Master Servicer
shall notify, or cause the applicable Mortgage Loan Seller to notify each
provider of a letter of credit for each Mortgage Loan identified as having a
letter of credit on the Mortgage Loan Schedule, that the Trust (in care of the
applicable Master Servicer) for the benefit of the Certificateholders and any
related Companion Holders shall be the beneficiary under each such letter of
credit and (B) the applicable Master Servicer shall notify each lessor under a
Ground Lease for each Mortgage Loan identified as subject to a leasehold
interest on the Mortgage Loan Schedule, that the applicable Master Servicer or
the Special Servicer shall service such Mortgage Loan for the benefit of the
Certificateholders and, if applicable, any related Companion Holder. If the
Mortgage Loan documents do not require the related Mortgagor to pay any costs
and expenses relating to any modifications to the related letter of credit, then
the applicable Mortgage Loan Seller shall pay such costs and expenses. If the
Mortgage Loan documents require the related Mortgagor to pay any costs and
expenses relating to any modifications to the related letter of credit, and such
Mortgagor fails to pay such costs and expenses after the applicable Master
Servicer has exercised reasonable efforts to collect such costs and expenses
from such Mortgagor, then the applicable Master Servicer shall give the
applicable Mortgage Loan Seller notice of such failure and the amount of costs
and expenses, and such Mortgage Loan Seller shall pay such costs and expenses.
The costs and expenses of any modifications to Ground Leases shall be paid by
the related Mortgagor. Neither the Master Servicers nor the Special Servicer
shall have any liability for the failure of any Mortgage Loan Seller to perform
its obligations under the related Mortgage Loan Purchase Agreement.
(g) Notwithstanding anything herein to the contrary, in no event
shall the Master Servicers (or the Co-Trustee, as applicable) make a Servicing
Advance with respect to any Companion Loan to the extent the related Mortgage
Loan has been paid in full or is no longer included in the Trust Fund.
(h) Servicing and administration of each Companion Loan shall
continue hereunder for so long as the corresponding Mortgage Loan or any related
REO Property is part of the Trust Fund or for such longer period as any amounts
payable by the related Companion Holder to or for the benefit of the Trust or
any party hereto in accordance with the related Intercreditor Agreement remain
due and owing.
(i) The Special Servicer agrees that upon the occurrence of a
Servicing Transfer Event with respect to any Serviced Whole Loan or other
Mortgage Loan that may become subject to an intercreditor agreement in the
future, it shall, subject to Section 3.21, enforce, on behalf of the Trust,
subject to the Servicing Standards and to the extent the Special Servicer
determines such action is in the best interests of the Trust Fund, the rights
that the Trustee, on behalf of the Trust, as holder of each related Mortgage
Loan is entitled to exercise under the related Intercreditor Agreement. The
costs and expenses incurred by the Special Servicer in connection with such
enforcement shall be paid as a Servicing Advance.
(j) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the applicable Master Servicer's and the
Special Servicer's obligations and responsibilities hereunder and the applicable
Master Servicer's and the Special Servicer's authority with respect to the
Non-Serviced Mortgage Loans are limited by and subject to the terms of the
related Intercreditor Agreement and the rights of the related master servicer
and special servicer with respect thereto under the related Non-Serviced Pooling
Agreement. The applicable Master Servicer (or, with respect to any Specially
Serviced Mortgage Loan, the Special Servicer) shall use reasonable best efforts
consistent with the Servicing Standards to enforce the rights of the Trustee (as
holder of the Non-Serviced Mortgage Loans) under the related Intercreditor
Agreement and the related Non-Serviced Pooling Agreement.
(k) The parties hereto acknowledge that the Non-Serviced Mortgage
Loans are subject to the terms and conditions of the related Intercreditor
Agreement and further acknowledge that, pursuant to the related Intercreditor
Agreement, (i) the Non-Serviced Mortgage Loans are to be serviced and
administered by the related master servicer and special servicer in accordance
with the related Non-Serviced Pooling Agreement, and (ii) in the event that (A)
the related Companion Loan is no longer part of the trust fund created by the
related Non-Serviced Pooling Agreement and (B) the related Non-Serviced Mortgage
Loan is included in the Trust Fund, then, as set forth in the related
Intercreditor Agreement, the related Whole Loan shall be serviced in accordance
with the applicable provisions of a pooling agreement negotiated by the holder
of the related Companion Loan that is substantially similar to the related
Non-Serviced Pooling Agreement, until such time as a new servicing agreement has
been agreed to by the parties to the related Intercreditor Agreement in
accordance with the provisions of such agreement and confirmation has been
obtained from the Rating Agencies that such new servicing agreement would not
result in a downgrade, qualification or withdrawal of the then current ratings
of any Class of Certificates then outstanding.
(l) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the servicing and administration of a Serviced
Whole Loan shall continue hereunder (without any further obligation to make P&I
Advances) even if the Serviced Mortgage Loan is no longer part of the Trust
Fund, until such time as a separate servicing agreement is entered into in
accordance with the related Intercreditor Agreement (it being acknowledged that
neither the applicable Master Servicer nor the Special Servicer shall be
obligated under a separate agreement to which it is not a party). At such time
as a separate servicing agreement is entered into, all amounts due to such
Master Servicer or Special Servicer, as applicable, including advances and
interest thereon, for the period that the Serviced Whole Loan was not part of
the Trust Fund, but was serviced by such Master Servicer or the Special
Servicer, as applicable shall be paid to such Master Servicer or the Special
Servicer upon the execution of a separate servicing agreement by the holder of
such Serviced Whole Loan or as otherwise agreed to by such holder and such
Master Servicer or the Special Servicer, as applicable.
(m) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the applicable Master Servicer's obligations
and responsibilities hereunder and such Master Servicer's authority with respect
to the Serviced Whole Loans are limited by and subject to the terms of the
related Intercreditor Agreement. The applicable Master Servicer (or, if a
Serviced Whole Loan becomes a Specially Serviced Loan, the Special Servicer)
shall use reasonable efforts consistent with the Servicing Standards to obtain
the benefits of the rights of the Trust Fund (as holder of the related Serviced
Mortgage Loan) under the related Intercreditor Agreement.
(n) Master Servicer No. 1 agrees it shall pay Xxxxx'x annual
surveillance fees.
Section 3.02 Collection of Mortgage Loan Payments. (a) Each of the
applicable Master Servicers and the Special Servicer shall make reasonable
efforts to collect all payments called for under the terms and provisions of the
Mortgage Loans (other than the Non-Serviced Mortgage Loans) and Companion Loans
(subject to the right of certain Companion Holders to receive payments directly
from the related Mortgagor pursuant to the related Intercreditor Agreement) it
is obligated to service hereunder, and shall follow such collection procedures
as are consistent with this Agreement (including, without limitation, the
Servicing Standards), provided that with respect to the Mortgage Loans that have
Anticipated Repayment Dates, so long as the related Mortgagor is in compliance
with each provision of the related Mortgage Loan documents, the applicable
Master Servicer and the Special Servicer, shall not take any enforcement action
with respect to the failure of the related Mortgagor to make any payment of
Excess Interest, other than requests for collection, until the maturity date of
the related Mortgage Loan or the outstanding principal balance of such Mortgage
Loan has been paid in full; provided that the Master Servicer or Special
Servicer, as the case may be, may take action to enforce the Trust Fund's right
to apply excess cash flow to principal in accordance with the terms of the
Mortgage Loan documents. The applicable Master Servicer or the Special Servicer,
as applicable, may in its discretion waive any Penalty Charge (other than a
Penalty Charge payable with respect to the Companion Loans if the related
Intercreditor Agreement provides that such Penalty Charge may not be waived
without the consent of the related Companion Loan Holder after the
securitization of such Companion Loan) in connection with any delinquent payment
on a Mortgage Loan or Companion Loan it is obligated to service hereunder two
times during any period of twenty-four consecutive months with respect to any
Mortgage Loan or Companion Loan; provided, that the applicable Master Servicer
or the Special Servicer, as applicable, may in its discretion waive any Penalty
Charge (other than a Penalty Charge payable with respect to the Companion Loans
if the related Intercreditor Agreement provides that such Penalty Charge may not
be waived without the consent of the related Companion Loan Holder after the
securitization of such Companion Loan) in connection with any delinquent payment
on a Mortgage Loan or Companion Loan one additional time in such 24-month period
so long as no Advance or additional Trust Fund expense has been incurred and
remains unreimbursed to the Trust with respect to such Mortgage Loan or
Companion Loan. Any additional waivers during such 24-month period with respect
to such Mortgage Loan may be made only after the applicable Master Servicer or
Special Servicer, as the case may be, has given notice of a proposed waiver to
the Directing Certificateholder and the Directing Certificateholder has
consented to such additional waiver (provided, that if the applicable Master
Servicer or Special Servicer, as the case may be, fails to receive a response to
such notice from the Directing Certificateholder in writing within five (5) days
of giving such notice, then the Directing Certificateholder shall be deemed to
have consented to such proposed waiver).
(b) All amounts collected on any Mortgage Loan or Companion Loan in
the form of payments from Mortgagors, Insurance and Condemnation Proceeds or
Liquidation Proceeds shall be applied to amounts due and owing under the related
Mortgage Note and Mortgage (including, without limitation, for principal and
accrued and unpaid interest) in accordance with the express provisions of the
related Mortgage Note and Mortgage (and, with respect to each Serviced Whole
Loan, the related Intercreditor Agreement) and, in the absence of such express
provisions, such payments from Mortgagors, Insurance and Condemnation Proceeds
or Liquidation Proceeds shall be applied (after reimbursement first to the
Co-Trustee and second to the applicable Master Servicer for any related
outstanding Advances (including Workout Delayed Reimbursement Amounts that have
not been reimbursed to the applicable Master Servicer) and interest thereon as
provided herein and unpaid servicing compensation, Liquidation Expenses and
related additional Trust Fund expenses): first, as a recovery of accrued and
unpaid interest on such Mortgage Loan or Companion Loan, as applicable, at the
related Mortgage Rate in effect from time to time to but not including the Due
Date in the Due Period of receipt; second, as a recovery of Unliquidated
Advances, third as a recovery of principal of such Mortgage Loan or Companion
Loan then due and owing, in each case, that were paid from collections on the
Mortgage Loans or Companion Loan and resulted in principal distributed to the
Certificateholders being reduced as a result of the first proviso in the
definition of "Principal Distribution Amount", "Loan Group 1 Principal
Distribution Amount" or "Loan Group 2 Principal Distribution Amount"; fourth, as
a recovery of Nonrecoverable Advances; fifth, in accordance with the Servicing
Standards, as a recovery of any other amounts due and owing on such Mortgage
Loan or Companion Loan, as applicable, including, without limitation, Penalty
Charges and Yield Maintenance Charges; and sixth, as a recovery of principal of
such Mortgage Loan or Companion Loan, as applicable, to the extent of its entire
unpaid principal balance. Notwithstanding the preceding, such provisions shall
not be deemed to affect the priority of distributions of payments. To the extent
that such amounts are paid by a party other than a Mortgagor, such amounts shall
be deemed to have been paid in respect of a purchase of all or part of the
Mortgaged Property (in the case of Insurance and Condemnation Proceeds or
Liquidation Proceeds) and then paid by the Mortgagor under the Mortgage Loan or
Companion Loan, as applicable, in accordance with the preceding sentence.
Amounts collected on any REO Loan shall be deemed to be applied in accordance
with the definition thereof.
(c) To the extent consistent with the terms of the Mortgage Loans
(and, with respect to each Serviced Whole Loan (s), the related Companion Loan
and Intercreditor Agreement) and applicable law, the applicable Master Servicer
shall apply all Insurance and Condemnation Proceeds it receives on a day other
than the Due Date to amounts due and owing under the related Mortgage Loan or
Companion Loan as if such Insurance and Condemnation Proceeds were received on
the Due Date immediately succeeding the month in which such Insurance and
Condemnation Proceeds were received.
(d) In the event that the applicable Master Servicer or Special
Servicer receives Excess Interest prior to the Determination Date for any Due
Period, or receives notice from the related Mortgagor that such Master Servicer
or Special Servicer will be receiving Excess Interest prior to the Determination
Date for any Due Period, such Master Servicer or Special Servicer, as the case
may be, will notify the Trustee 2 Business Days prior to the related
Distribution Date in the CMSA Loan Periodic Update File. None of the Master
Servicers, the Special Servicer, the Co-Trustee or the Trustee shall be
responsible for any failure of the related Mortgagor to pay any such Excess
Interest. The preceding statements shall not, however, be construed to limit the
provisions of Section 3.02(a).
(e) With respect to any Mortgage Loan in connection with which the
Mortgagor was required to escrow funds or to post a letter of credit related to
obtaining certain performance objectives described in the applicable Mortgage
Loan documents, the applicable Master Servicer shall, to the extent consistent
with the Servicing Standards, hold such escrows, letters of credit and proceeds
thereof as additional collateral and not apply such items to reduce the
principal balance of such Mortgage Loan unless otherwise required to do so
pursuant to the applicable Mortgage Loan documents, applicable law or court
order.
(f) Promptly following the Closing Date, the Trustee shall send
written notice (in the form attached hereto as Exhibit M, and with respect to
the Solana Mortgage Loan, accompanied by an execution copy of this Agreement, to
the BACM 2007-1 Trustee and the BACM 2007-1 Master Servicer) to each master
servicer related to the Non-Serviced Mortgage Loans (or in the case of the
Americold Pool 2 Mortgage Loan, to the JPMCC 2007-CIBC18 Primary Servicer)
stating that, as of the Closing Date, the Trustee is the holder of the
applicable Non-Serviced Mortgage Loan and directing the related master servicer
(or primary servicer, as applicable) to remit to the applicable Master Servicer
all amounts payable to, and to forward, deliver or otherwise make available, as
the case may be, to the Master Servicer all reports, statements, documents,
communications and other information that are to be forwarded, delivered or
otherwise made available to, the holder of the applicable Non-Serviced Mortgage
Loan under the related Intercreditor Agreement and the related Non-Serviced
Pooling Agreement. The applicable Master Servicer shall, within one Business Day
of receipt, deposit into the Certificate Account all amounts received with
respect to the related Non-Serviced Mortgage Loan, the related Mortgaged
Property or any related REO Property. With respect to the Solana Mortgage Loan,
such notice shall also provide contact information for the Trustee, the
applicable Master Servicer and the Special Servicer.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts. (a) Each Master Servicer shall establish and maintain one or
more accounts (the "Servicing Accounts"), into which all Escrow Payments shall
be deposited and retained, and shall administer such Servicing Accounts in
accordance with the Mortgage Loan documents and Companion Loan documents. Any
Servicing Accounts related to any Serviced Whole Loan shall be held for the
benefit of the Certificateholders and the related Companion Holder, but this
shall not be construed to modify their respective interests therein as set forth
in the related Intercreditor Agreement. Amounts on deposit in Servicing Accounts
may only be invested in accordance with the terms of the related Mortgage Loan
documents or in Permitted Investments in accordance with the provisions of
Section 3.06. Servicing Accounts shall be Eligible Accounts to the extent
permitted by the terms of the related Mortgage Loan documents. Withdrawals of
amounts so deposited from a Servicing Account may be made only to: (i) effect
payment of items for which Escrow Payments were collected and comparable items;
(ii) reimburse the Co-Trustee, and then the applicable Master Servicer for any
Servicing Advances; (iii) refund to Mortgagors any sums as may be determined to
be overages; (iv) pay interest to Mortgagors on balances in the Servicing
Account, if required by applicable law or the terms of the related Mortgage Loan
or Companion Loan and as described below or, if not so required, to the
applicable Master Servicer; (v) after the occurrence of an event of default
under the related Mortgage Loan or Companion Loan, apply amounts to the
indebtedness under the applicable Mortgage Loan or Companion Loan; (vi) withdraw
amounts deposited in error; (vii) pay Penalty Charges to the extent permitted by
the related Mortgage Loan documents; or (viii) clear and terminate the Servicing
Account at the termination of this Agreement in accordance with Section 9.01. As
part of its servicing duties, each Master Servicer, with respect to the Mortgage
Loans it is obligated to service hereunder, shall pay or cause to be paid to the
Mortgagors interest on funds in Servicing Accounts, to the extent required by
law or the terms of the related Mortgage Loan or Companion Loan; provided,
however, that in no event shall such Master Servicer be required to remit to any
Mortgagor any amounts in excess of actual net investment income or funds in the
related Servicing Account. If allowed by the related Mortgage Loan documents and
applicable law, the applicable Master Servicer may charge the related Mortgagor
an administrative fee for maintenance of the Servicing Accounts.
(b) The Special Servicer, in the case of REO Loans (other than any
REO Loan succeeding the Non-Serviced Mortgage Loans), and the applicable Master
Servicer, in the case of all other Mortgage Loans other than the Non-Serviced
Mortgage Loans (and each Companion Loan) that it is responsible for servicing
hereunder, shall maintain accurate records with respect to each related
Mortgaged Property reflecting the status of real estate taxes, assessments and
other similar items that are or may become a lien thereon and the status of
insurance premiums and any ground rents payable in respect thereof. The Special
Servicer, in the case of REO Loans (other than any REO Loan succeeding the
Non-Serviced Mortgage Loans), and the applicable Master Servicer, in the case of
all other Mortgage Loans and Companion Loans that it is responsible for
servicing hereunder, shall use reasonable efforts consistent with the Servicing
Standards to obtain, from time to time, all bills for the payment of such items
(including renewal premiums) and shall effect payment thereof from the REO
Account or by the applicable Master Servicer as Servicing Advances prior to the
applicable penalty or termination date and, in any event, prior to the
institution of foreclosure or similar proceedings with respect to the related
Mortgaged Property for nonpayment of such items, employing for such purpose
Escrow Payments (which shall be so applied by the Master Servicer at the written
direction of the Special Servicer in the case of REO Loans) as allowed under the
terms of the related Mortgage Loan (other than the Non-Serviced Mortgage Loans)
or Companion Loan. The applicable Master Servicer shall service and administer
any reserve accounts (including monitoring, maintaining or changing the amounts
of required escrows) in accordance with the terms of such Mortgage Loan and the
Servicing Standards. To the extent that a Mortgage Loan (other than the
Non-Serviced Mortgage Loans) (or a Companion Loan) does not require a Mortgagor
to escrow for the payment of real estate taxes, assessments, insurance premiums,
ground rents (if applicable) and similar items, the Special Servicer, in the
case of REO Loans, and the applicable Master Servicer, in the case of all other
Mortgage Loans and Companion Loans that it is responsible for servicing
hereunder, shall use reasonable efforts consistent with the Servicing Standards
to cause the Mortgagor to comply with its obligation to make payments in respect
of such items at the time they first become due and, in any event, prior to the
institution of foreclosure or similar proceedings with respect to the related
Mortgaged Property for nonpayment of such items.
(c) In accordance with the Servicing Standards and for all Mortgage
Loans (other than the Non-Serviced Mortgage Loans) and Serviced Whole Loans that
it is responsible for servicing hereunder, the applicable Master Servicer shall
advance all such funds as are necessary for the purpose of effecting the payment
of (i) real estate taxes, assessments and other similar items that are or may
become a lien thereon, (ii) ground rents (if applicable) and (iii) premiums on
Insurance Policies, in each instance if and to the extent Escrow Payments
collected from the related Mortgagor (or related REO Revenues, if applicable)
are insufficient to pay such item when due and the related Mortgagor has failed
to pay such item on a timely basis, and provided, however, that the particular
advance would not, if made, constitute a Nonrecoverable Servicing Advance and
provided, further, however, that with respect to the payment of taxes and
assessments, insurance premiums and rents under any Ground Lease, the applicable
Master Servicer shall not be required to make such advance until the later of
(1) five Business Days after such Master Servicer, the Special Servicer, the
Trustee or the Co-Trustee, as applicable, has received confirmation that such
item has not been paid or (2) the date prior to the date after which any penalty
or interest would accrue in respect of such taxes or assessments or after which
a lapse in insurance coverage or a breach under any Ground Lease would occur as
a result of a failure to pay such taxes, assessments, premiums or payments. The
Special Servicer shall give the applicable Master Servicer, the Trustee and the
Co-Trustee no less than five Business Days' written (facsimile or electronic)
notice before the date on which such Master Servicer is requested to make any
Servicing Advance with respect to a given Specially Serviced Mortgage Loan or
REO Property; provided, however, that only two Business Days' written (facsimile
or electronic) notice shall be required in respect of Servicing Advances
required to be made on an emergency or urgent basis; provided, further, that the
Special Servicer shall not be entitled to make such a request (other than for
Servicing Advances required to be made on an urgent or emergency basis) more
frequently than once per calendar month (although such request may relate to
more than one Servicing Advance). The applicable Master Servicer may pay the
aggregate amount of such Servicing Advances listed on a monthly request to the
Special Servicer, in which case the Special Servicer shall remit such Servicing
Advances to the ultimate payees. In addition, the Special Servicer shall provide
the applicable Master Servicer and the Co-Trustee with such information in its
possession as such Master Servicer or the Co-Trustee, as the case may be, may
reasonably request to enable such Master Servicer or the Co-Trustee, as
applicable, to determine whether a requested Servicing Advance would constitute
a Nonrecoverable Advance. Any request by the Special Servicer that any Master
Servicer make a Servicing Advance shall be deemed to be a determination by the
Special Servicer that such requested Servicing Advance is not a Nonrecoverable
Servicing Advance, and such Master Servicer shall be entitled to conclusively
rely on such determination, provided that the determination shall not be binding
on such Master Servicer or Co-Trustee. On the first Business Day after the
Determination Date for the related Distribution Date, the Special Servicer shall
report to the applicable Master Servicer if the Special Servicer determines any
Servicing Advance previously made by such Master Servicer with respect to a
Specially Serviced Mortgage Loan or REO Loan is a Nonrecoverable Servicing
Advance. Such Master Servicer shall be entitled to conclusively rely on such a
determination, and such determination shall be binding upon such Master
Servicer, but shall in no way limit the ability of such Master Servicer, in the
absence of such determination, to make its own determination that any Advance is
a Nonrecoverable Advance. All such Advances shall be reimbursable in the first
instance from related collections from the Mortgagors and further as provided in
Section 3.05. No costs incurred by the applicable Master Servicer or the Special
Servicer in effecting the payment of real estate taxes, assessments and, if
applicable, ground rents on or in respect of the Mortgaged Properties shall, for
purposes hereof, including, without limitation, the Trustee's calculation of
monthly distributions to Certificateholders, be added to the unpaid principal
balances of the related Mortgage Loans or the Companion Loans, notwithstanding
that the terms of such Mortgage Loans or the Companion Loans so permit. If the
applicable Master Servicer fails to make any required Servicing Advance as and
when due (including any applicable cure periods), to the extent the Co-Trustee
has actual knowledge of such failure, the Co-Trustee shall make such Servicing
Advance pursuant to Section 7.05. Notwithstanding anything herein to the
contrary, no Servicing Advance shall be required hereunder if such Servicing
Advance would, if made, constitute a Nonrecoverable Servicing Advance. In
addition, the applicable Master Servicer shall consider Unliquidated Advances in
respect of prior Servicing Advances for purposes of nonrecoverability
determinations. The Special Servicer shall not be required to make Servicing
Advances under this Agreement but may make such Servicing Advances at its option
in which event the applicable Master Servicer shall reimburse the Special
Servicer for such Servicing Advance as provided below.
No later than 1:00 p.m., New York City time, on the first
Determination Date that follows the date on which it makes any Servicing
Advance, the Special Servicer shall provide the applicable Master Servicer an
Officer's Certificate setting forth the details of the Servicing Advance, upon
which such Master Servicer may conclusively rely in reimbursing the Special
Servicer. The applicable Master Servicer shall be obligated, out of its own
funds, to reimburse the Special Servicer for any unreimbursed Servicing Advances
(other than Nonrecoverable Servicing Advances) made by the Special Servicer
together with interest thereon at the Reimbursement Rate from the date made to,
but not including, the date of reimbursement. Any such reimbursement, together
with any accompanying payment of interest, shall be made by the applicable
Master Servicer, by wire transfer of immediately available funds to an account
designated by the Special Servicer, no later than the first P&I Advance Date
that is at least three (3) Business Days after the date on which such Master
Servicer receives the corresponding Officer's Certificate contemplated by the
prior sentence; provided that any such Officer's Certificate received after 1:00
p.m., New York City time, on any particular date shall, for purposes of any such
reimbursement, be deemed received on the next succeeding Business Day. Upon its
reimbursement to the Special Servicer of any Servicing Advance and payment to
the Special Servicer of interest thereon, the applicable Master Servicer shall
for all purposes of this Agreement be deemed to have made such Servicing Advance
at the same time as the Special Servicer actually made such Servicing Advance,
and accordingly, such Master Servicer shall be entitled to reimbursement for
such Servicing Advance, together with interest accrued thereon, at the same
time, in the same manner and to the same extent as such Master Servicer would
otherwise have been entitled if it had actually made such Servicing Advance at
the time the Special Servicer did.
Notwithstanding the foregoing provisions of this Section 3.03(c), a
Master Servicer shall not be required to reimburse the Special Servicer for, or
to make at the direction of the Special Servicer, any Servicing Advance if such
Master Servicer determines that such Servicing Advance, although not
characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is
a Nonrecoverable Servicing Advance. The subject Master Servicer shall notify the
Special Servicer in writing of such determination and, if applicable, such
Nonrecoverable Servicing Advance shall be reimbursed to the Special Servicer
pursuant to Section 3.05(a).
Notwithstanding anything to the contrary contained in this Section
3.03(c), any Master Servicer may in its good faith judgment elect (but shall not
be required unless directed by the Special Servicer with respect to Specially
Serviced Mortgage Loans and REO Loans) to make a payment from amounts on deposit
in the applicable Certificate Account (which shall be deemed first made from
amounts distributable as principal and then from all other amounts comprising
general collections) to pay for certain expenses set forth below notwithstanding
that such Master Servicer (or Special Servicer, as applicable) has determined
that a Servicing Advance with respect to such expenditure would be a
Nonrecoverable Servicing Advance (unless, with respect to Specially Serviced
Mortgage Loans or REO Loans, the Special Servicer has notified such Master
Servicer to not make such expenditure), where making such expenditure would
prevent (i) the related Mortgaged Property from being uninsured or being sold at
a tax sale or (ii) any event that would cause a loss of the priority of the lien
of the related Mortgage, or the loss of any security for the related Mortgage
Loan; provided that in each instance, such Master Servicer or the Special
Servicer, as applicable, determines in accordance with the Servicing Standards
(as evidenced by an Officer's Certificate delivered to the Trustee and the
Co-Trustee) that making such expenditure is in the best interest of the
Certificateholders (and, if applicable the Companion Holders), all as a
collective whole. Each Master Servicer or Co-Trustee may elect to obtain
reimbursement of Nonrecoverable Servicing Advances from the Trust Fund pursuant
to the terms of Section 3.19(c). The parties acknowledge that pursuant to the
BACM 2007-1 Pooling Agreement, the BACM 2007-1 Master Servicer is obligated to
make servicing advances with respect to the Skyline Portfolio Whole Loan and the
Solana Whole Loan. The BACM 2007-1 Master Servicer shall be entitled to
reimbursement for nonrecoverable servicing advances with respect to the Skyline
Portfolio Whole Loan and the Solana Whole Loan (with, in each case, any accrued
and unpaid interest thereon provided for under the BACM 2007-1 Pooling
Agreement) in the manner set forth in the BACM 2007-1 Pooling Agreement and the
Skyline Portfolio Intercreditor Agreement or the Solana Intercreditor Agreement,
as applicable. The parties acknowledge that pursuant to the JPMCC 2007-CIBC18
Pooling Agreement, the JPMCC 2007-CIBC18 Primary Servicer is obligated to make
servicing advances with respect to the Americold Pool 2 Whole Loan. The JPMCC
2007-CIBC18 Primary Servicer shall be entitled to reimbursement for
nonrecoverable servicing advances with respect to the Americold Pool 2 Whole
Loan (with, in each case, any accrued and unpaid interest thereon provided for
under the JPMCC 2007-CIBC18 Pooling Agreement) in the manner set forth in the
JPMCC 2007-CIBC18 Pooling Agreement and the Americold Pool 2 Intercreditor
Agreement.
(d) In connection with its recovery of any Servicing Advance out of
the applicable Certificate Account pursuant to Section 3.05(a), the Co-Trustee
and then the applicable Master Servicer, as the case may be, shall be entitled
to receive, out of any amounts then on deposit in such Certificate Account
interest at the Reimbursement Rate in effect from time to time, accrued on the
amount of such Servicing Advance from the date made to, but not including, the
date of reimbursement. If there are insufficient funds to reimburse the
Co-Trustee or a Master Servicer interest at the Reimbursement Rate out of the
applicable Certificate Account, such party shall be entitled to receive the
amounts referred to in this Section 3.03(d) out of amounts then on deposit in
the other Certificate Account. Subject to Section 3.19(c), each Master Servicer
shall reimburse itself or the Co-Trustee, as the case may be, for any
outstanding Servicing Advance as soon as practically possible after funds
available for such purpose are deposited in the applicable Certificate Account.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Mortgage Loan (other than
the Non-Serviced Mortgage Loans), the applicable Master Servicer shall request
from the Mortgagor written confirmation thereof within a reasonable time after
the later of the Closing Date and the date as of which such plan is required to
be established or completed. To the extent any repairs, capital improvements,
actions or remediations are required to have been taken or completed pursuant to
the terms of the Mortgage Loan (other than the Non-Serviced Mortgage Loans), the
applicable Master Servicer shall request from the Mortgagor written confirmation
of such actions and remediations within a reasonable time after the later of the
Closing Date and the date as of which such action or remediations are required
to be or to have been taken or completed. To the extent a Mortgagor shall fail
to promptly respond to any inquiry described in this Section 3.03(e) within a
reasonable period of time following such inquiry, the applicable Master Servicer
shall promptly report any such failure to the Special Servicer.
Section 3.04 The Certificate Account, the Lower-Tier, the
Middle-Tier Distribution Account and Upper-Tier Distribution Accounts, the
Companion Distribution Account, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the Floating
Rate Accounts. (a) Each Master Servicer shall establish and maintain, or cause
to be established and maintained, a Certificate Account in which such Master
Servicer shall deposit or cause to be deposited on a daily basis and in no event
later than the Business Day following receipt of available funds (in the case of
payments by Mortgagors or other collections on the Mortgage Loans or Companion
Loans), except as otherwise specifically provided herein, the following payments
and collections received or made by or on behalf of it subsequent to the Cut-off
Date (other than in respect of principal and interest on the Mortgage Loans or
Companion Loans due and payable on or before the Cut-off Date, which payments
shall be delivered promptly to the appropriate Mortgage Loan Seller or its
designee and other than any amounts received from Mortgagors which are received
in connection with the purchase of defeasance collateral), or payments (other
than Principal Prepayments) received by it on or prior to the Cut-off Date but
allocable to a period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans or Companion Loans;
(ii) all payments on account of interest on the Mortgage Loans or
Companion Loans, including Yield Maintenance Charges and Default Interest;
(iii) late payment charges and other Penalty Charges to the extent
required to offset interest on Advances and additional Trust Fund expenses
(other than Special Servicing Fees, Workout Fees or Liquidation Fees) as
required by Section 3.11;
(iv) all Insurance and Condemnation Proceeds and Liquidation
Proceeds (other than Gain-on-Sale Proceeds) received in respect of any
Mortgage Loan, Companion Loan or REO Property (other than (i) Liquidation
Proceeds that are received in connection with the purchase by the
applicable Master Servicer, the Special Servicer, the Holders of the
Controlling Class, or the Holders of the Class LR Certificates of all the
Mortgage Loans and any REO Properties in the Trust Fund and that are to be
deposited in the Lower-Tier Distribution Account pursuant to Section 9.01
and (ii) if applicable, Liquidation Proceeds that are received in
connection with the purchase of a Companion Loan from a securitization by
the related mortgage loan seller or by the holder of a purchase option
pursuant to the related Intercreditor Agreement or Other Pooling and
Servicing Agreement, which shall be paid directly to the servicer of such
securitization) together with any recovery of Unliquidated Advances in
respect of the related Mortgage Loans;
(v) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c);
(vi) any amounts required to be deposited by the applicable Master
Servicer pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the applicable
Certificate Account; and
(vii) any amounts required to be deposited by the applicable Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in connection
with losses resulting from a deductible clause in a blanket hazard or
master single interest policy.
Notwithstanding the foregoing requirements, each Master Servicer
need not deposit into its related Certificate Account any amount that such
Master Servicer would be authorized to withdraw immediately from such account in
accordance with the terms of Section 3.05 and shall be entitled to instead
immediately pay such amount directly to the Person(s) entitled thereto;
provided, that such amounts shall be applied in accordance with the terms hereof
and shall be reported as if deposited in such Certificate Account and then
withdrawn.
The foregoing requirements for deposit in any Certificate Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, actual payments from Mortgagors in the nature of
Escrow Payments, charges for beneficiary statements or demands, assumption fees,
modification fees, extension fees, defeasance fees, or amounts collected for
Mortgagor checks returned for insufficient funds need not be deposited by the
applicable Master Servicer in its related Certificate Account. If the applicable
Master Servicer shall deposit in its related Certificate Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
such Certificate Account, any provision herein to the contrary notwithstanding.
Assumption, extension and modification fees actually received from Mortgagors on
Specially Serviced Mortgage Loans shall be promptly delivered to the Special
Servicer as additional servicing compensation.
Upon receipt of any of the foregoing amounts in clauses (i)-(iv)
above with respect to any Specially Serviced Mortgage Loans, the Special
Servicer shall remit within one (1) Business Day such amounts to the applicable
Master Servicer for deposit into the applicable Certificate Account, in
accordance with this Section 3.04(a). Any such amounts received by the Special
Servicer with respect to an REO Property shall be deposited by the Special
Servicer into the REO Account and remitted to the applicable Master Servicer for
deposit into the Certificate Account, pursuant to Section 3.16(c). With respect
to any such amounts paid by check to the order of the Special Servicer, the
Special Servicer shall endorse without recourse or warranty such check to the
order of the applicable Master Servicer and shall promptly deliver any such
check to such Master Servicer by overnight courier.
Funds in the Certificate Accounts may only be invested in Permitted
Investments in accordance with the provisions of Section 3.06. As of the Closing
Date, the Certificate Account for Master Servicer No. 1 shall be located at the
offices of PNC Bank in Pittsburgh, Pennsylvania. As of the Closing Date, the
Certificate Account for Master Servicer No. 2 shall be located at the offices of
Wachovia Bank, National Association in Charlotte, North Carolina. Each Master
Servicer shall give notice to the Trustee, the Co-Trustee, the Special Servicer
and the Depositor of the new location of its Certificate Account prior to any
change thereof.
(b) The Trustee, shall establish and maintain the Lower-Tier
Distribution Account, the Middle-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Interest
Reserve Account, the Floating Rate Accounts and the Gain-on-Sale Reserve Account
in trust for the benefit of the Certificateholders (and the Trustee as holder of
the Class A-2SFL Regular Interest and the Class A-JFL Regular Interest, the
Uncertificated Middle-Tier Interests and the Uncertificated Lower-Tier
Interests). The applicable Master Servicer shall deliver to the Trustee each
month, on or before the P&I Advance Date therein, for deposit in the Lower-Tier
Distribution Account, that portion of the Available Distribution Amount
attributable to the Mortgage Loans it is obligated to service hereunder (in each
case, calculated without regard to clauses (a)(iv), (a)(viii), (c) and (d) of
the definition of Available Distribution Amount) for the related Distribution
Date and in the Excess Interest Distribution Account all Excess Interest for the
related Distribution Date then on deposit in the applicable Certificate Account
after giving effect to withdrawals of funds pursuant to Section
3.05(a)(ii)-(xx).
With respect to the Companion Loans (excluding the Skyline Portfolio
Pari Passu Companion Loans, the Solana Pari Passu Companion Loan and the
Americold Pool 2 Pari Passu Companion Loans), each Companion Paying Agent shall
establish and maintain an account for each Companion Loan, each of which may be
a subaccount of the applicable Certificate Account, for distributions to each
Companion Holder (each, a "Companion Distribution Account") to be held for the
benefit of the related Companion Holder and shall, promptly upon receipt,
deposit in the Companion Distribution Account any and all amounts received by
the Companion Paying Agent that are required by the terms of this Agreement or
the applicable Intercreditor Agreement to be deposited therein. Each Master
Servicer shall deliver to the applicable Companion Paying Agent each month, on
or before the P&I Advance Date therein, for deposit in the Companion
Distribution Account, an aggregate amount of immediately available funds, to the
extent of available funds, equal to the amount to be distributed to the related
Companion Holder pursuant to the terms of this Agreement and the related
Intercreditor Agreement.
Notwithstanding the preceding paragraph, the following provisions
shall apply to remittances relating to the Companion Loans related to Serviced
Whole Loans. On each Serviced Whole Loan Remittance Date, the applicable Master
Servicer shall withdraw from the Certificate Account and transfer to the
Companion Distribution Account an aggregate amount equal to all payments and/or
collections actually received on such Companion Loans on or prior to such dates
and not previously so transferred and all amounts then on deposit in the
Certificate Account that represent any reimbursement amount payable to the
related Companion Holder; provided, however, that in no event shall the
applicable Master Servicer be required to transfer to the Companion Distribution
Account any portion thereof that is payable or reimbursable to or at the
direction of any party to this Agreement under the other provisions of this
Agreement and/or the related Intercreditor Agreement; provided that if the
applicable Companion Paying Agent and the Master Servicer are the same Person,
the Master Servicer shall not make such transfer and shall make the payments
described below. On each Serviced Whole Loan Remittance Date, the applicable
Companion Paying Agent shall make the payments and remittance described in
Section 4.01(j) of this Agreement, which payments and remittance shall be made,
in each case, on the related Serviced Whole Loan Remittance Date.
Notwithstanding anything to the contrary contained herein, with respect to each
Companion Holder, the applicable Master Servicer shall withdraw from the related
Certificate Account and remit to the related Companion Holder, within one
Business Day of receipt thereof, any amounts that represent Late Collections on
such Companion Loan or any successor REO Loan with respect thereto that are
received by the Master Servicer subsequent to 5:00 p.m. (New York City time) on
the related Due Date therefor (exclusive of any portion of such amount payable
or reimbursable to any third party in accordance with the related Intercreditor
Agreement or this Agreement).
The Lower-Tier Distribution Account, the Middle-Tier Distribution
Account, the Upper-Tier Distribution Account, the Excess Interest Distribution
Account, the Gain-on-Sale Reserve Account, the Interest Reserve Account, the
Floating Rate Accounts and the Companion Distribution Account may be subaccounts
of a single Eligible Account, which shall be maintained as a segregated account
separate from other accounts.
In addition to the amounts required to be deposited in the
Lower-Tier Distribution Account pursuant to the third preceding paragraph, each
Master Servicer shall, as and when required hereunder, deliver to the Trustee
for deposit in the Lower-Tier Distribution Account:
(i) any amounts required to be deposited by such Master Servicer
pursuant to Section 3.19 as Compensating Interest Payments in connection
with Prepayment Interest Shortfalls;
(ii) any P&I Advances required to be made by such Master Servicer in
accordance with Section 4.03;
(iii) any Liquidation Proceeds paid by such Master Servicer, the
Special Servicer, the Holders of the Controlling Class or the Holders of
the Class LR Certificates in connection with the purchase of all of the
Mortgage Loans and any REO Properties in the Trust Fund pursuant to
Section 9.01 (exclusive of that portion thereof required to be deposited
in the applicable Certificate Account pursuant to Section 9.01);
(iv) any Yield Maintenance Charges actually collected; and
(v) any other amounts required to be so delivered for deposit in the
Lower-Tier Distribution Account pursuant to any provision of this
Agreement.
If, as of the close of business (New York City time), on any P&I
Advance Date or on such other date as any amount referred to in the foregoing
clauses (i) through (v) are required to be delivered hereunder, the applicable
Master Servicer shall not have delivered to the Trustee for deposit in the
Lower-Tier Distribution Account and the Excess Interest Distribution Account the
amounts required to be deposited therein pursuant to the provisions of this
Agreement (including any P&I Advance pursuant to Section 4.03(a) hereof), such
Master Servicer shall pay the Trustee interest on such late payment at the Prime
Rate from and including the date such payment was required to be made (without
regard to any grace period set forth in Section 7.01(a)(i)) until (but not
including) the date such late payment is received by the Trustee.
The Trustee shall, upon receipt, deposit in the Lower-Tier
Distribution Account or the Excess Interest Distribution Account, as applicable,
any and all amounts received by the Trustee that are required by the terms of
this Agreement to be deposited therein.
Promptly on each Distribution Date, the Trustee shall be deemed to
withdraw from the Lower-Tier Distribution Account and deposit in the Middle-Tier
Distribution Account an aggregate amount of immediately available funds equal to
the Lower-Tier Regular Distribution Amount and the amount of any Yield
Maintenance Charges for such Distribution Date allocated in payment of the
Uncertificated Lower-Tier Interests as specified in Sections 4.01(b) and
4.01(d), respectively, withdraw from the Middle-Tier Distribution Account an
aggregate amount of immediately available funds equal to the Middle-Tier Regular
Distribution Amount in payment of the Uncertificated Middle-Tier Interests as
specified in Sections 4.01(b) and 4.01(d), respectively, and then immediately be
deemed to withdraw from the Upper-Tier Distribution Account and deposit in the
Class A-2SFL Floating Rate Account and the Class A-JFL Floating Rate Account,
respectively, an aggregate amount of immediately available funds equal to (i)
the Class A-2SFL Available Funds and any Yield Maintenance Charges allocated to
the Class A-2SFL Regular Interest for such Distribution Date as specified in
Sections 4.01(d)(i) and 4.01(k) and (ii) the Class A-JFL Available Funds and any
Yield Maintenance Charges allocated to the Class A-JFL Regular Interest for such
Distribution Date as specified in Sections 4.01(d)(i) and 4.01(k).
Funds on deposit in the Gain-on-Sale Reserve Account, the Interest
Reserve Account, the Excess Interest Distribution Account, the Floating Rate
Accounts, the Upper-Tier Distribution Account, the Middle-Tier Distribution
Account and the Lower-Tier Distribution Account may be invested. As of the
Closing Date, the Interest Reserve Account, the Floating Rate Accounts, the
Upper-Tier Distribution Account, the Middle-Tier Distribution Account and the
Lower-Tier Distribution Account shall be located at the offices of the Trustee.
The Trustee shall give notice to the Master Servicers and the Depositor of the
location of the Interest Reserve Account, the Upper-Tier Distribution Account,
the Middle-Tier Distribution Account, the Lower-Tier Distribution Account, the
Excess Interest Distribution Account, the Floating Rate Accounts, and, if
established, the Gain-on-Sale Reserve Account, and of the proposed location of
such accounts prior to any change thereof.
(c) Prior to any Determination Date for the first Due Period during
which Excess Interest is received on any Mortgage Loan, and upon notification
from the applicable Master Servicer or Special Servicer pursuant to Section
3.02(d), the Trustee, on behalf of the Certificateholders, shall establish and
maintain the Excess Interest Distribution Account in the name of the Trustee in
trust for the benefit of the Class S Certificateholders. The Excess Interest
Distribution Account shall be established and maintained as an Eligible Account
(or as a subaccount of an Eligible Account). Prior to the applicable
Distribution Date, each Master Servicer shall remit to the Trustee for deposit
in the Excess Interest Distribution Account an amount equal to the Excess
Interest received prior to the Determination Date for the applicable Due Period.
Following the distribution of Excess Interest to Class S
Certificateholders on the first Distribution Date after which there are no
longer any Mortgage Loans outstanding which pursuant to their terms could pay
Excess Interest, the Trustee shall terminate the Excess Interest Distribution
Account.
(d) The Trustee shall establish (upon notice from the Special
Servicer of an event occurring that generates Gain-on-Sale Proceeds) and
maintain the Gain-on-Sale Reserve Account in trust for the benefit of the
Certificateholders. The Gain-on-Sale Reserve Account shall be maintained as an
Eligible Account (or as a subaccount of an Eligible Account), separate and apart
from trust funds for mortgage pass-through certificates of other series
administered by the Trustee. Funds in the Gain-on-Sale Reserve Account may be
invested.
Upon the disposition of any REO Property in accordance with Section
3.09 or Section 3.18, the Special Servicer will calculate the Gain-on-Sale
Proceeds, if any, realized in connection with such sale and remit such funds to
the Trustee for deposit into the Gain-on-Sale Reserve Account, other than
Gain-on-Sale Proceeds allocable to the Companion Loans, which shall be remitted
to the applicable Companion Trustee for deposit into the applicable Companion
Distribution Account.
(e) On or before the Closing Date, the Trustee shall establish and
maintain the Class A-2SFL Floating Rate Account and the Class A-JFL Floating
Rate Account in trust for the benefit of the Class A-2SFL Certificateholders and
the Class A-JFL Certificateholders, respectively. The Floating Rate Accounts
shall each (i) at all times be an Eligible Account and (ii) relate solely to the
Class A-2SFL Certificates or Class A-JFL Certificates, as applicable. The
Trustee shall deposit into the respective Floating Rate Account all amounts
received in respect of distributions on the Class A-2SFL Regular Interest and
Class A-JFL Regular Interest as specified in Section 3.04(b), and shall
immediately deposit into the respective Floating Rate Account all amounts
received under the Swap Contracts.
Section 3.05 Permitted Withdrawals from the Certificate Accounts,
the Distribution Accounts, the Companion Distribution Account and the Floating
Rate Accounts. (a) Each Master Servicer may, from time to time, make withdrawals
from its related Certificate Account for any of the following purposes (without
duplication of the same payment or reimbursement):
(i) (A) no later than 4:00 p.m. New York City time on each P&I
Advance Date, to remit to the Trustee for deposit in the Lower-Tier
Distribution Account and the Excess Interest Distribution Account the
amounts required to be remitted pursuant to the first paragraph of Section
3.04(b) and Section 3.04(c) or that may be applied to make P&I Advances
pursuant to Section 4.03(a) and (B) pursuant to the second paragraph of
Section 3.04(b), to remit to the applicable Companion Paying Agent for
deposit in the applicable Companion Distribution Account the amounts
required to be so deposited on the date specified in the related
Intercreditor Agreement with respect to the related Companion Loans;
(ii) (A) to pay itself unpaid Servicing Fees in respect of each
Mortgage Loan, Companion Loan (to the extent permitted in the related
Intercreditor Agreement), Specially Serviced Mortgage Loan and REO Loan,
as applicable, such Master Servicer's rights to payment of Servicing Fees
pursuant to this clause (ii)(A) with respect to any Mortgage Loan,
Companion Loan, Specially Serviced Mortgage Loan or REO Loan, as
applicable, being limited to amounts received on or in respect of such
Mortgage Loan or Companion Loan (whether in the form of payments,
Liquidation Proceeds or Insurance and Condemnation Proceeds) or such REO
Loan (whether in the form of REO Revenues, Liquidation Proceeds or
Insurance and Condemnation Proceeds), that are allocable as recovery of
interest thereon and (B) to pay the Special Servicer any unpaid Special
Servicing Fees, Liquidation Fees and Workout Fees in respect of each
Specially Serviced Mortgage Loan or REO Loan or Corrected Mortgage Loan,
as applicable, and any expense incurred by the Special Servicer in
connection with performing any inspections pursuant to Section 3.12(a),
remaining unpaid first, out of related REO Revenues, Liquidation Proceeds
and Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties (provided that, in
the case of such payment relating to a Serviced Whole Loan, such payment
shall be made first, from amounts collected on the related subordinate
Companion Loan, if any, and then from the related Mortgage Loan and any
related pari passu Companion Loan, pro rata and pari passu in accordance
with their Stated Principal Balances, subject to the terms of the related
Intercreditor Agreement, prior to being payable out of general collections
and provided, further that with respect to any Serviced Whole Loan, such
expenses shall be reimbursed as among the related Companion Loans in the
priority and subject to the limitations set forth in the related
Intercreditor Agreement);
(iii) to reimburse the Co-Trustee and itself or, on a pro rata
basis, the other Master Servicers (if amounts in such other Master
Servicers' Certificate Accounts are not sufficient for such
reimbursement), as applicable (in that order), for xxxxxxxxxxxx X&X
Advances, the applicable Master Servicer's or the Co-Trustee's right to
reimbursement pursuant to this clause (iii) being limited to amounts
received which represent Late Collections of interest (net of the related
Servicing Fees) on and principal of the particular Mortgage Loans and REO
Loans with respect to which such P&I Advances were made; provided,
however, that if such P&I Advance becomes a Workout-Delayed Reimbursement
Amount, then such P&I Advance shall thereafter be reimbursed from the
portion of general collections and recoveries on or in respect of the
Mortgage Loans and REO Properties on deposit in its Certificate Account
(and from funds in the other Certificate Account) from time to time that
represent collections or recoveries of principal to the extent provided in
clause (v) below (to be allocated between the Loan Groups as set forth in
the last paragraph of Section 3.05 (a)) or, in the circumstances specified
in Section 3.19(c), from general collections (provided that with respect
to any Serviced Mortgage Loan, reimbursement of P&I Advances shall be made
only from amounts collected with respect to such Serviced Mortgage Loan
(and not from any amounts collected with respect to the related Companion
Loan) prior to reimbursement from other funds unrelated to the related
Serviced Whole Loan on deposit in the Certificate Account);
(iv) to reimburse the Co-Trustee and itself or, on a pro rata basis,
the other Master Servicers (if amounts in such other Master Servicers'
Certificate Accounts are not sufficient for such reimbursement), as
applicable (in that order), for unreimbursed Servicing Advances, the
applicable Master Servicer's or the Co-Trustee's respective rights to
receive payment pursuant to this clause (iv) with respect to any Mortgage
Loan (other than the Non-Serviced Mortgage Loans), Companion Loan or REO
Property being limited to, as applicable, related payments, Liquidation
Proceeds, Insurance and Condemnation Proceeds and REO Revenues (provided
that, in case of such reimbursement relating to an Serviced Whole Loan,
such reimbursements shall be made first, from amounts collected on the
related subordinate Companion Loan, if any, and then from the related
Mortgage Loan and pari passu Companion Loan(s), pro rata and pari passu
based on their Stated Principal Balances, subject to, and in accordance
with, the terms of the related Intercreditor Agreement, prior to being
payable out of general collections); provided, however, that if such
Servicing Advance becomes a Workout Delayed Reimbursement Amount, then
such Servicing Advance shall thereafter be reimbursed from the portion of
general collections and recoveries on or in respect of the Mortgage Loans
and REO Properties on deposit in its Certificate Account (and from funds
in the other Certificate Account) from time to time that represent
collections or recoveries of principal to the extent provided in clause
(v) below (to be allocated between the Loan Groups as set forth in the
last paragraph of Section 3.05(a)) or, in the circumstances specified in
Section 3.19(c), from general collections;
(v) to reimburse the Co-Trustee, itself or, on a pro rata basis, the
other Master Servicers (if amounts in such other Master Servicers'
Certificate Accounts are not sufficient for such reimbursement), as
applicable (in that order) (1) for Nonrecoverable Advances (including
Workout-Delayed Reimbursement Amounts that constitute Nonrecoverable
Advances) first, out of REO Revenues, Liquidation Proceeds and Insurance
and Condemnation Proceeds received on the related Mortgage Loan and
Companion Loan, then, out of the principal portion of general collections
on the Mortgage Loans and REO Properties (to be allocated between the Loan
Groups as set forth in the last paragraph of Section 3.05 (a)), then, to
the extent the principal portion of general collections is insufficient
and with respect to such excess only, subject to any exercise of the sole
option to defer reimbursement thereof pursuant to Section 3.19(c), out of
other collections on the Mortgage Loans and REO Properties and, (2) with
respect to the Workout-Delayed Reimbursement Amounts that are not
Nonrecoverable Advances, out of the principal portion of the general
collections on the Mortgage Loans and REO Properties (to be allocated
between the Loan Groups as set forth in the last paragraph of Section 3.05
(a)), net of such amounts being reimbursed pursuant to (1) above (provided
that, in the case of such reimbursement relating to a Serviced Whole Loan,
such reimbursements shall be made first from amounts collected on any
related subordinate Companion Loan and then from the related Mortgage Loan
and any related pari passu Companion Loan(s), pro rata and pari passu
based on their related Stated Principal Balances, subject to and in
accordance with the related Intercreditor Agreement, prior to being
payable out of general collections) or to pay itself, with respect to any
Mortgage Loan and the Companion Loans, if applicable, or REO Property any
related earned Servicing Fee that remained unpaid in accordance with
clause (ii) above following a Final Recovery Determination made with
respect to such Mortgage Loan or REO Property and the deposit into the
applicable Certificate Account of all amounts received in connection
therewith;
(vi) at such time as it reimburses the Co-Trustee and itself or, on
a pro rata basis, the other Master Servicers (if amounts in such other
Master Servicers' Certificate Accounts are not sufficient for such
reimbursement), as applicable (in that order) or any servicing party for a
related securitization trust in respect of any Serviced Securitized
Companion Loan for (a) any xxxxxxxxxxxx X&X Advance (including any such
P&I Advance that constitutes a Workout Delayed Reimbursement Amount)
pursuant to clause (iii) above, to pay itself or the Co-Trustee or, on a
pro rata basis, the other Master Servicers (if amounts in such other
Master Servicers' Certificate Accounts are not sufficient for such
reimbursement) or such other servicing party, as applicable, any interest
accrued and payable thereon in accordance with Sections 4.03(d) and
3.11(c), (b) any unreimbursed Servicing Advances (including any such
Servicing Advance that constitutes a Workout Delayed Reimbursement Amount)
pursuant to clause (iv) above, to pay itself or, on a pro rata basis, the
Co-Trustee or the other Master Servicers (if amounts in such other Master
Servicers' Certificate Accounts are not sufficient for such
reimbursement), as the case may be, any interest accrued and payable
thereon in accordance with Sections 3.03(d) and 3.11(c) or (c) any
Nonrecoverable Advances pursuant to clause (v) above, to pay itself or the
Co-Trustee or, on a pro rata basis, the other Master Servicers (if amounts
in such other Master Servicers' Certificate Accounts are not sufficient
for such reimbursement), or such other servicing party, as the case may
be, any interest accrued and payable thereon; provided, that in all events
interest on P&I Advances on any Serviced Securitized Companion Loan shall
not be paid from funds available to any other related Serviced Securitized
Companion Loan;
(vii) to reimburse itself, the Special Servicer, the Co-Trustee or
the Trustee, as the case may be, for any unreimbursed expenses reasonably
incurred by such Person in respect of any Breach or Defect giving rise to
a repurchase or substitution obligation of the applicable Mortgage Loan
Seller under Section 6 of the applicable Mortgage Loan Purchase Agreement,
including, without limitation, any expenses arising out of the enforcement
of the repurchase or substitution obligation, each such Person's right to
reimbursement pursuant to this clause (vii) with respect to any Mortgage
Loan being limited to that portion of the Purchase Price or Substitution
Shortfall Amount paid with respect to such Mortgage Loan that represents
such expense in accordance with clause (iii) or clause (iv) of the
definition of Purchase Price;
(viii) in accordance with Section 2.03(e), to reimburse itself or,
on a pro rata basis, the other Master Servicers (if amounts in such other
Master Servicers' Certificate Accounts are not sufficient for such
reimbursement), or the Special Servicer, as the case may be, first, out of
Liquidation Proceeds, Insurance and Condemnation Proceeds, and then out of
general collections on the Mortgage Loans and REO Properties, for any
unreimbursed expense reasonably incurred by such Person in connection with
the enforcement of the applicable Mortgage Loan Seller's obligations under
Section 6 of the applicable Mortgage Loan Purchase Agreement, but only to
the extent that such expenses are not reimbursable pursuant to clause
(vii) above or otherwise (provided that, in case of such reimbursement
relating to a Serviced Whole Loan, such reimbursements shall be made
first, from amounts collected on the related subordinate Companion Loan,
if any, and then from the related Mortgage Loan and any related pari passu
Companion Loan, pro rata and pari passu in accordance with their Stated
Principal Balances, subject to, and in accordance with, the terms of the
related Intercreditor Agreement prior to being payable out of general
collections);
(ix) to pay for costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c) first, out of REO Revenues, Liquidation
Proceeds, Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties (provided that, in
case of such reimbursement relating to a Serviced Whole Loan, such
reimbursements shall be made first, from amounts collected on the related
subordinate Companion Loan, if any, and then from the related Mortgage
Loan and any related pari passu Companion Loan, pro rata and pari passu in
accordance with their Stated Principal Balances, subject to, and in
accordance with, the terms of the related Intercreditor Agreement prior to
being payable out of general collections);
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (a) (A) interest and investment income
earned in respect of amounts relating to the Trust Fund held in its
Certificate Account and the Companion Distribution Account as provided in
Section 3.06(b) (but only to the extent of the Net Investment Earnings
with respect to its Certificate Account and the Companion Distribution
Account for the period from and including the prior P&I Advance Date to
but excluding the P&I Advance Date related to such Distribution Date) and
(B) Penalty Charges (other than Penalty Charges collected while the
related Mortgage Loan is a Specially Serviced Mortgage Loan), but only to
the extent collected from the related Mortgagor and to the extent that all
amounts then due and payable with respect to the related Mortgage Loan
have been paid and such Penalty Charges are not needed to pay interest on
Advances or costs and expenses incurred by the Trust Fund (other than
Special Servicing Fees) in accordance with Section 3.11(d); and (b) to pay
the Special Servicer, as additional servicing compensation in accordance
with Section 3.11(c), Penalty Charges collected on Specially Serviced
Mortgage Loans (but only to the extent collected from the related
Mortgagor and to the extent that all amounts then due and payable with
respect to the related Specially Serviced Mortgage Loan have been paid and
such Penalty Charges are not needed to pay interest on Advances or costs
and expenses incurred by the Trust Fund in accordance with Section
3.11(d));
(xi) to recoup any amounts deposited in the applicable Certificate
Account in error;
(xii) to pay itself, the other Master Servicers on a pro rata basis
(if amounts in such other Master Servicers' Certificate Accounts are not
sufficient for such reimbursement), the Special Servicer, the Depositor or
any of their respective directors, officers, members, managers, employees
and agents, as the case may be, out of general collections, any amounts
payable to any such Person pursuant to Section 6.03(a) or 6.03(b)
(provided that, in case of such payments relating to a Serviced Whole
Loan, such reimbursements shall be made first, from amounts collected on
the related subordinate Companion Loan, if any, and then from the related
Mortgage Loan and any related pari passu Companion Loan, pro rata and pari
passu in accordance with their Stated Principal Balances, subject to and
in accordance with the terms of the related Intercreditor Agreement, prior
to being payable out of general collections);
(xiii) to pay for (a) the cost of the Opinions of Counsel
contemplated by Sections 3.09(b), 3.16(a), 3.17(b), 3.20(a), 3.20(d) and
10.01(f) to the extent payable out of the Trust Fund, (b) the cost of any
Opinion of Counsel contemplated by Section 11.01(a) or 11.01(c) in
connection with an amendment to this Agreement requested by the Trustee or
the applicable Master Servicer, which amendment is in furtherance of the
rights and interests of Certificateholders and (c) the cost of obtaining
the REO Extension contemplated by Section 3.16(a) (provided that, in case
of such payments relating to a Serviced Whole Loan, such reimbursements
shall be made first, from amounts collected on the related subordinate
Companion Loan, if any, and then from the related Mortgage Loan and any
related pari passu Companion Loan, pro rata and pari passu in accordance
with their Stated Principal Balances, subject to and in accordance with
the terms of the related Intercreditor Agreement, prior to being payable
out of general collections);
(xiv) to pay out of general collections on the Mortgage Loans and
REO Properties any and all federal, state and local taxes imposed on the
Upper-Tier REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC, or any of
their assets or transactions, together with all incidental costs and
expenses, to the extent that none of the Master Servicers, the Special
Servicer or the Trustee is liable therefor pursuant to Section 10.01(g);
(xv) to reimburse the Trustee out of general collections on the
Mortgage Loans and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund pursuant to Section 10.01(c);
(xvi) to pay itself, the Special Servicer or the applicable Mortgage
Loan Seller, as the case may be, with respect to each Mortgage Loan, if
any, previously purchased by such Person pursuant to this Agreement, all
amounts received thereon subsequent to the date of purchase; or, in the
case of the substitution for a Mortgage Loan by a Mortgage Loan Seller
pursuant to Section 2.03(b), to pay such Mortgage Loan Seller with respect
to the replaced Mortgage Loan all amounts received thereon subsequent to
the date of substitution, and with respect to the related Qualified
Substitute Mortgage Loan(s), all Monthly Payments due thereon during or
prior to the month of substitution, in accordance with the last two
sentences of the first paragraph of Section 2.03(b);
(xvii) to remit to the Trustee for deposit in the Interest Reserve
Account the amounts required to be deposited in the Interest Reserve
Account pursuant to Section 3.25;
(xviii) to clear and terminate the applicable Certificate Account at
the termination of this Agreement pursuant to Section 9.01;
(xix) to remit to the applicable Companion Paying Agent for deposit
into the applicable Companion Distribution Account the amounts required to
be deposited pursuant to the second paragraph of Section 3.04(b); and
(xx) to pay for any expenditures to be borne by the Trust Fund
pursuant to the second paragraph of Section 3.03(c).
The applicable Master Servicer shall also be entitled to make
withdrawals from time to time, from the Certificate Account of amounts necessary
for the payments or reimbursement of amounts required to be paid to (i) the BACM
2007-1 Master Servicer, the BACM 2007-1 Special Servicer or the BACM 2007-1
Trustee by the holder of the Skyline Portfolio Mortgage Loan pursuant to the
Skyline Portfolio Intercreditor Agreement and the BACM 2007-1 Pooling Agreement
or by the holder of the Solana Mortgage Loan pursuant to the Solana
Intercreditor Agreement and the BACM 2007-1 Pooling Agreement and (ii) the JPMCC
2007-CIBC18 Master Servicer, the JPMCC 2007-CIBC18 Primary Servicer, the JPMCC
2007-CIBC18 Special Servicer or the JPMCC 2007-CIBC18 Trustee by the holder of
the Americold Pool 2 Mortgage Loan pursuant to the Americold Pool 2
Intercreditor Agreement and the JPMCC 2007-CIBC18 Pooling Agreement.
The applicable Master Servicer for each Serviced Whole Loan shall
also make withdrawals from time to time, from the Certificate Account of amounts
necessary for the payments or reimbursements provided for under the related
Intercreditor Agreement with respect to the related Companion Loan(s) within one
Business Day of receipt of such amounts pursuant to the related Intercreditor
Agreement.
Each Master Servicer shall keep and maintain separate accounting
records, on a loan by loan and property by property basis when appropriate, for
the purpose of justifying any withdrawal from its related Certificate Account.
Each Master Servicer shall pay to the Special Servicer, the
Co-Trustee or the Trustee from its related Certificate Account amounts permitted
to be paid to it therefrom monthly upon receipt of a certificate of a Servicing
Officer of the Special Servicer or a Responsible Officer of the Trustee or the
Co-Trustee describing the item and amount to which the Special Servicer, the
Co-Trustee or the Trustee is entitled. Each Master Servicer may rely
conclusively on any such certificate and shall have no duty to re-calculate the
amounts stated therein. The Special Servicer shall keep and maintain separate
accounting for each Specially Serviced Mortgage Loan and REO Loan, on a
loan-by-loan and property-by-property basis, for the purpose of justifying any
request for withdrawal from the applicable Certificate Account. To the extent a
Nonrecoverable Advance or Workout Delayed Reimbursement Amount with respect to a
Mortgage Loan is required to be reimbursed from the principal portion of the
general collections on the Mortgage Loans pursuant to clauses (iii), (iv) or (v)
of this Section 3.05(a), such reimbursement shall be made first, from the
principal collection available on the Mortgage Loans included in the same Loan
Group as such Mortgage Loan and if the principal collections in such Loan Group
are not sufficient to make such reimbursement in full, then from the principal
collections available in the other Loan Group (after giving effect to any
reimbursement of Nonrecoverable Advances and Workout Delayed Reimbursement
Amounts related to such other Loan Group. To the extent a Nonrecoverable Advance
with respect to a Mortgage Loan is required to be reimbursed from the interest
portion of the general collections on the Mortgage Loans pursuant to clauses
(iii), (iv) or (v) of this Section 3.05(a), such reimbursement shall be made
first, from the interest collections available on the Mortgage Loans included in
the same Loan Group as such Mortgage Loan and if the interest collections in
such Loan Group are not sufficient to make such reimbursement in full, then from
the interest collections available in the other Loan Group (after giving effect
to any reimbursement of Nonrecoverable Advances related to such other Loan
Group).
(b) The Trustee, may, from time to time, make withdrawals from the
Lower-Tier Distribution Account and the Middle-Tier Distribution Account for any
of the following purposes:
(i) to be deemed to (A) make deposits of the Lower-Tier Regular
Distribution Amount pursuant to Section 4.01(b) and to distribute the
amount of any Yield Maintenance Charges distributable pursuant to Section
4.01(d) in the Middle-Tier Distribution Account, and to make distributions
on the Class LR Certificates pursuant to Section 4.01(b) and (B) make
deposits of the Middle-Tier Regular Distribution Amount pursuant to
Section 4.01(b) and to distribute the amount of any Yield Maintenance
Charges distributable pursuant to Section 4.01(d) in the Upper-Tier
Distribution Account, and to make distributions on the Class MR
Certificates pursuant to Section 4.01(b);
(ii) [RESERVED];
(iii) [RESERVED];
(iv) to pay to the Trustee and the Co-Trustee or any of their
directors, officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person, with respect to the Mortgage
Loans, pursuant to Section 8.05(b);
(v) from the Lower-Tier Distribution Account, to pay the Trustee or
the Co-Trustee, the Trustee Fee and Co-Trustee Fee as contemplated by
Section 8.05(a) hereof with respect to the Mortgage Loans;
(vi) from the Lower-Tier Distribution Account, to pay for the cost
of the Opinions of Counsel sought by the Trustee (A) as provided in clause
(v) of the definition of "Disqualified Organization," (B) as contemplated
by Section 3.20(d), 8.02(ii) and 10.01(f), or (C) as contemplated by
Section 12.01(a) or 12.01(c) in connection with any amendment to this
Agreement requested by the Trustee, which amendment is in furtherance of
the rights and interests of Certificateholders, in each case, to the
extent not paid pursuant to Section 12.01(g);
(vii) from the Lower-Tier Distribution Account, to pay any and all
federal, state and local taxes imposed on any of the Lower-Tier REMIC, the
Middle-Tier REMIC or Upper-Tier REMIC or on the assets or transactions of
any such REMIC, together with all incidental costs and expenses, to the
extent none of the Trustee, the REMIC Administrator, the applicable Master
Servicer or the Special Servicer is liable therefor pursuant to Section
10.01(g);
(viii) from the Lower-Tier Distribution Account, to pay the REMIC
Administrator any amounts reimbursable to it pursuant to Section 10.01(e);
(ix) from the Lower-Tier Distribution Account, to pay to the
applicable Master Servicer any amounts deposited by such Master Servicer
in the Distribution Account not required to be deposited therein; and
(x) to clear and terminate the Lower-Tier Distribution Account and
Middle-Tier Distribution Account at the termination of this Agreement
pursuant to Section 9.01.
(c) The Trustee shall, on any Distribution Date, make withdrawals
from the Excess Interest Distribution Account to the extent required to make the
distributions of Excess Interest required by Section 4.01(l).
(d) The Trustee may make, or be deemed to make, withdrawals from the
Upper-Tier Distribution Account for any of the following purposes:
(i) to make distributions to Certificateholders (other than Holders
of the Class A-2SFL Certificates, the Class A-JFL Certificates, the Class
S Certificates and the Class LR Certificates) and to the respective
Floating Rate Account in respect of the Class A-2SFL Regular Interest and
Class A-JFL Regular Interest on each Distribution Date pursuant to Section
4.01 or 9.01, as applicable, subject to the penultimate paragraph of
Section 3.04(b);
(ii) [RESERVED]; and
(iii) to clear and terminate the Upper-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(e) Notwithstanding anything herein to the contrary, with respect to
any Mortgage Loan, (i) if amounts on deposit in any Certificate Account and the
Lower-Tier Distribution Account are not sufficient to pay the full amount of the
Servicing Fee listed in Section 3.05(a)(ii) and the Trustee Fee and Co-Trustee
Fee listed in Section 3.05(b)(v), then the Trustee Fee and Co-Trustee Fee shall
be paid in full prior to the payment of any Servicing Fees payable under Section
3.05(a)(ii) and in the event that amounts on deposit in any Certificate Account
and the Lower-Tier Distribution Account are not sufficient to pay the full
amount of such Trustee Fee and Co-Trustee Fee, the Trustee and the Co-Trustee
shall be paid based on the amount of such fees and (ii) if amounts on deposit in
any Certificate Account are not sufficient to reimburse the full amount of
Advances and interest thereon listed in Sections 3.05(a)(iii), (iv), (v) and
(vi), then reimbursements shall be paid first to the Trustee and the Co-Trustee
and second to the applicable Master Servicer.
(f) Each Companion Paying Agent may, from time to time, make
withdrawals from its Companion Distribution Account to make distributions
pursuant to Section 4.01(i).
(g) The Trustee shall make withdrawals from the respective Floating
Rate Account only for the following purposes:
(i) to withdraw amounts deposited in the respective Floating Rate
Account in error and pay such amounts to the Persons entitled thereto;
(ii) to pay any funds required to be paid to the Swap Counterparty
under the respective Swap Contract as specified in Section 3.31(c), and to
pay costs or expenses, if any, related to the respective Swap Contract
pursuant to Section 3.31(f);
(iii) to make distributions to the Holders of the Class A-2SFL
Certificates and the Class A-JFL Certificates pursuant to Section 4.01(k);
and
(iv) to clear and terminate the respective Floating Rate Account
pursuant to Section 9.01.
Section 3.06 Investment of Funds in the Certificate Accounts, the
Distribution Accounts, the Gain-on-Sale Reserve Account, the Interest Reserve
Account and the REO Account. (a) Each Master Servicer may direct any depository
institution maintaining its related Certificate Account, Companion Distribution
Account, or any Servicing Account (for purposes of this Section 3.06, an
"Investment Account"), the Special Servicer may direct any depository
institution maintaining the REO Account (also for purposes of this Section 3.06,
an "Investment Account"), the Trustee may direct any depository institution
maintaining its Distribution Accounts, Gain-on-Sale Reserve Account and Interest
Reserve Account, (also for purposes of this Section 3.06, an "Investment
Account"), to invest or if it is such depository institution, may itself invest,
the funds held therein, only in one or more Permitted Investments bearing
interest or sold at a discount, and maturing, unless payable on demand, (i) no
later than the Business Day immediately preceding the next succeeding date on
which such funds are required to be withdrawn from such account pursuant to this
Agreement, if a Person other than the depository institution maintaining such
account is the obligor thereon and (ii) no later than the date on which such
funds are required to be withdrawn from such account pursuant to this Agreement,
if the depository institution maintaining such account is the obligor thereon.
All such Permitted Investments shall be held to maturity, unless payable on
demand. Any investment of funds in an Investment Account shall be made in the
name of the Trustee (in its capacity as such). Each Master Servicer (in the case
of each Certificate Account, Companion Distribution Account, or any Servicing
Account maintained by or for such Master Servicer), the Special Servicer (in the
case of the REO Account or any Servicing Account maintained by or for the
Special Servicer), or the Trustee (in the case of the Distribution Accounts,
Gain-on-Sale Reserve Account and Interest Reserve Account), on behalf of the
Trustee, shall maintain continuous physical possession of any Permitted
Investment of amounts in each Certificate Account, Companion Distribution
Account, the Servicing Accounts, REO Account, Gain-on-Sale Reserve Account and
Interest Reserve Account, as applicable, that is either (i) a "certificated
security," as such term is defined in the UCC (such that the Trustee shall have
control pursuant to Section 8-106 of the UCC) or (ii) other property in which a
secured party may perfect its security interest by physical possession under the
UCC or any other applicable law. In the case of any Permitted Investment held in
the form of a "security entitlement" (within the meaning of Section 8-102(a)(17)
of the UCC), each Master Servicer or the Special Servicer, as applicable, shall
take or cause to be taken such action as the Trustee deems reasonably necessary
to cause the Trustee to have control over such security entitlement. In the
event amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the applicable Master Servicer (in the
case of the Certificate Account, Companion Distribution Account, or any
Servicing Account maintained by or for the Master Servicer), the Special
Servicer (in the case of the REO Account or any Servicing Account maintained by
or for the Special Servicer), or the Trustee (in the case of the Distribution
Accounts, Gain-on-Sale Reserve Account and Interest Reserve Account) shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (a) all amounts then payable thereunder and (b) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the applicable Master Servicer, the Special Servicer or
the Trustee, as the case may be, that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter on
deposit in the Investment Account.
(b) Interest and investment income realized on funds deposited in
the applicable Certificate Account, Companion Distribution Account, or any
Servicing Account maintained by or for the applicable Master Servicer, to the
extent of the Net Investment Earnings, if any, with respect to such account for
the period from and including the prior P&I Advance Date to but excluding the
immediately succeeding P&I Advance Date, shall be for the sole and exclusive
benefit of such Master Servicer to the extent not required to be paid to the
related Mortgagor and shall be subject to its withdrawal, or withdrawal at its
direction, in accordance with Sections 3.03 or Section 3.05(a), as the case may
be. Interest and investment income realized on funds deposited in the REO
Account or any Servicing Account maintained by or for the Special Servicer, to
the extent of the Net Investment Earnings, if any, with respect to such account
for each period from and including any P&I Advance Date to but excluding the
immediately succeeding P&I Advance Date, shall be for the sole and exclusive
benefit of the Special Servicer and shall be subject to its withdrawal in
accordance with Section 3.16(c). Interest and investment income realized on
funds deposited in the Distribution Accounts, Gain-on-Sale Reserve Account or
Interest Reserve Account maintained by the Trustee, shall be for the sole and
exclusive benefit of the Trustee. In the event that any loss shall be incurred
in respect of any Permitted Investment (other than any Permitted Investment the
income with respect to which would have been required to be paid to the related
Mortgagor) directed to be made by the applicable Master Servicer, Special
Servicer or Trustee, as applicable, and on deposit in any of the Certificate
Account, Companion Distribution Account, the Servicing Account, the REO Account,
Distribution Accounts, Gain-on-Sale Reserve Account or Interest Reserve Account,
such Master Servicer (in the case of the Certificate Account, Companion
Distribution Account, or any Servicing Account maintained by or for such Master
Servicer), the Special Servicer (in the case of the REO Account or any Servicing
Account maintained by or for the Special Servicer) and the Trustee (in the case
of the Distribution Accounts, the Gain-on-Sale Reserve Account and the Interest
Reserve Account) shall deposit therein, no later than the P&I Advance Date,
without right of reimbursement, the amount of Net Investment Loss, if any, with
respect to such account for the period from and including the prior P&I Advance
Date, to and including the immediately succeeding P&I Advance Date, provided
that neither the applicable Master Servicer, the Special Servicer nor the
Trustee shall be required to deposit any loss on an investment of funds in an
Investment Account if such loss is incurred solely as a result of the insolvency
of the federal or state chartered depository institution or trust company that
holds such Investment Account, so long as such depository institution or trust
company satisfied the qualifications set forth in the definition of Eligible
Account at the time such investment was made (and, with respect to a Master
Servicer, such federal or state chartered depository institution or trust
company is not an Affiliate of such Master Servicer unless such depository
institution or trust company satisfied the qualification set forth in the
definition of Eligible Account both (x) at the time the investment was made and
(y) 30 days prior to such insolvency).
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, each Master Servicer may and, upon the request of Holders of
Certificates entitled to a majority of the Voting Rights allocated to any Class
shall, take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage. (a) The applicable Master Servicer (with respect to the
Mortgage Loans (including the Serviced Whole Loans and other than the
Non-Serviced Mortgage Loans) it is obligated to service hereunder and the
related Specially Serviced Mortgage Loans) or the Special Servicer (with respect
to REO Properties other than the Skyline Portfolio Mortgaged Property, the
Solana Mortgaged Property and the Americold Pool 2 Mortgaged Property) shall use
efforts consistent with the Servicing Standards to cause the Mortgagor to
maintain (other than with respect to the Non-Serviced Mortgage Loans), to the
extent required by the terms of the related Mortgage Loan all insurance coverage
as is required under the related Mortgage Loan except to the extent that the
failure of the related Mortgagor to do so is an Acceptable Insurance Default. If
the Mortgagor does not so maintain such insurance coverage, subject to its
recoverability determination with respect to any required Servicing Advance, the
applicable Master Servicer (with respect to the Mortgage Loans, Companion Loans
and Serviced Whole Loans, and other than the Non-Serviced Mortgage Loans) or the
Special Servicer (with respect to REO Properties other than the Skyline
Portfolio Mortgaged Property, the Solana Mortgaged Property and the Americold
Pool 2 Mortgaged Property) shall maintain all insurance coverage as is required
under the related Mortgage Loan but only in the event the Trustee has an
insurable interest therein and such insurance is available to such Master
Servicer or the Special Servicer and, if available, can be obtained at
commercially reasonable rates, as determined by such Master Servicer (with
respect to Mortgage Loans and Serviced Whole Loans and other than the
Non-Serviced Mortgage Loans) (or in the case of insurance against property
damage resulting from terrorist or similar acts or insurance with respect to REO
Properties other than the Skyline Portfolio Mortgaged Property, the Solana
Mortgaged Property and the Americold Pool 2 Mortgaged Property, the Special
Servicer) except to the extent that the failure of the related Mortgagor to do
so is an Acceptable Insurance Default; provided, however, that if any Mortgage
Loan permits the holder thereof to dictate to the Mortgagor the insurance
coverage to be maintained on such Mortgaged Property, the applicable Master
Servicer or the Special Servicer, as the case may be, shall impose such
insurance requirements as are consistent with the Servicing Standards taking
into account the insurance in place at the closing of the Mortgage Loan,
provided that, with respect to the immediately preceding proviso, such Master
Servicer will be obligated to maintain insurance against property damage
resulting from terrorist or similar acts unless the Mortgagor's failure is an
Acceptable Insurance Default and only in the event the Trustee has an insurable
interest therein and such insurance is available to such Master Servicer and, if
available, can be obtained at commercially reasonable rates as determined by the
Special Servicer, provided that such Master Servicer shall be entitled to
conclusively rely on such determination. Subject to Section 3.17(a) and the
costs of such insurance being reimbursed or paid to the Special Servicer as
provided in the penultimate sentence of this paragraph, the Special Servicer
shall maintain for each REO Property (other than the Skyline Portfolio Mortgaged
Property, the Solana Mortgaged Property and the Americold Pool 2 Mortgaged
Property) no less insurance coverage than was previously required of the
Mortgagor under the related Mortgage Loan and Companion Loan unless the Special
Servicer, with Directing Certificateholder consent, determines that such
insurance is not available at commercially reasonable rates, provided that such
Master Servicer shall be entitled to conclusively rely on such determination.
All Insurance Policies that insure against loss to the property and are
maintained by the Master Servicers or the Special Servicer shall (i) contain a
"standard" mortgagee clause, with loss payable to the applicable Master Servicer
on behalf of the Trustee (in the case of insurance maintained in respect of
Mortgage Loans and Companion Loans other than REO Properties) or to the Special
Servicer on behalf of the Trustee (in the case of insurance maintained in
respect of REO Properties), (ii) be in the name of the Trustee (in the case of
insurance maintained in respect of REO Properties), (iii) include coverage in an
amount not less than the lesser of (x) the full replacement cost of the
improvements securing Mortgaged Property or the REO Property, as applicable, or
(y) the outstanding principal balance owing on the related Mortgage Loan,
Companion Loan or REO Loan, as applicable, and in any event, the amount
necessary to avoid the operation of any co-insurance provisions, (iv) include a
replacement cost endorsement providing no deduction for depreciation (unless
such endorsement is not permitted under the related Mortgage Loan documents),
(v) be noncancellable without 30 days prior written notice to the insured party
(except in the case of nonpayment, in which case such policy shall not be
cancelled without 10 days prior notice) and (vi) subject to the proviso in the
second sentence of this Section 3.07, be issued by a Qualified Insurer
authorized under applicable law to issue such Insurance Policies. Any amounts
collected by the applicable Master Servicer or the Special Servicer under any
Insurance Policies (other than amounts to be applied to the restoration or
repair of the related Mortgaged Property or REO Property or amounts to be
released to the related Mortgagor, in each case in accordance with the Servicing
Standards and the provisions of the related Mortgage Loan and Companion Loan)
shall be deposited in the applicable Certificate Account, subject to withdrawal
pursuant to Section 3.05(a). Any costs incurred by the applicable Master
Servicer in maintaining any Insurance Policies in respect of Mortgage Loans and
Companion Loans (other than REO Properties) (i) if the Mortgagor defaults on its
obligation to do so, shall be advanced by the applicable Master Servicer as a
Servicing Advance and will be charged to the related Mortgagor and (ii) shall
not, for purposes of calculating monthly distributions to Certificateholders and
Companion Holders, be added to the unpaid principal balance of the related
Mortgage Loan and Companion Loan, notwithstanding that the terms of such
Mortgage Loan or Companion Loan so permit. Any cost incurred by the Special
Servicer in maintaining any Insurance Policies with respect to REO Properties
shall be an expense of the Trust payable out of the related REO Account pursuant
to Section 3.16(c) or, if the amount on deposit therein is insufficient
therefor, advanced by the applicable Master Servicer as a Servicing Advance. The
foregoing provisions of this paragraph shall apply to a Mortgage Loan and its
related Companion Loan as if each pair were a single "Mortgage Loan".
Notwithstanding the foregoing, with respect to the Mortgage Loans
(other than the Non-Serviced Mortgage Loans) or the Companion Loans that either
(x) require the Mortgagor to maintain property insurance providing "special"
form coverage (and do not expressly permit an exclusion for terrorism) or (y)
contain provisions generally requiring the applicable Mortgagor to maintain
insurance in types and against such risks as the holder of such Mortgage Loan or
the Companion Loans reasonably requires from time to time in order to protect
its interests, the applicable Master Servicer will be required to, consistent
with the Servicing Standards, (A) actively monitor whether the insurance
policies for the related Mortgaged Property contain Additional Exclusions, (B)
request the Mortgagor to either purchase insurance against the risks specified
in the Additional Exclusions or provide an explanation as to its reasons for
failing to purchase such insurance and (C) notify the Special Servicer if it has
knowledge (such knowledge to be based on the applicable Master Servicer's
compliance with the immediately preceding clauses (A) and (B)) that any
insurance policy contains Additional Exclusions or if it has knowledge (such
knowledge to be based on the applicable Master Servicer's compliance with the
immediately preceding clauses (A) and (B)) that any borrower fails to purchase
the insurance requested to be purchased by the applicable Master Servicer
pursuant to clause (B) above. If the Special Servicer determines in accordance
with the Servicing Standards that such failure is not an Acceptable Insurance
Default, the Special Servicer shall notify the applicable Master Servicer and
such Master Servicer shall cause such insurance to be maintained in accordance
with this Section 3.07(a). Furthermore, the Special Servicer shall inform the
Rating Agencies as to such conclusions for those Mortgage Loans that (i) have
one of the ten (10) highest outstanding Stated Principal Balances of all of the
Mortgage Loans then included in the Trust or (ii) comprise more than 5% of the
outstanding Stated Principal Balance of the Mortgage Loans then included in the
Trust. During the period that the Special Servicer is evaluating the
availability of such insurance, the Master Servicer will not be liable for any
loss related to its failure to require the Mortgagor to maintain such insurance
and will not be in default of its obligations as a result of such failure and
such Master Servicer will not itself maintain such insurance or cause such
insurance to be maintained.
Notwithstanding the foregoing, the applicable Master Servicer will
not be required to maintain or cause to be maintained any earthquake or
environmental insurance on a Mortgaged Property unless such insurance was in
effect as of origination of the Mortgage Loan or the date of initial issuance of
the Certificates and such insurance is available at commercially reasonable
rates.
Each of the Master Servicer and the Special Servicer will be
entitled to rely on insurance consultants in making the determination described
in the definition of "Acceptable Insurance Default" (as well as determinations
of whether particular exclusions constitute additional exclusions) and the cost
of such expense shall be paid from the Certificate Account as a Servicing
Advance.
(b) (i) If the applicable Master Servicer or the Special Servicer
shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer
insuring against fire and hazard losses on all of the Mortgage Loans, including
the Serviced Whole Loans, or REO Properties (other than with respect to the
Skyline Portfolio Mortgaged Property, the Solana Mortgaged Property and the
Americold Pool 2 Mortgaged Property), as the case may be, required to be
serviced and administered hereunder, then, to the extent such Insurance Policy
provides protection equivalent to the individual policies otherwise required,
such Master Servicer or the Special Servicer shall conclusively be deemed to
have satisfied its obligation to cause fire and hazard insurance to be
maintained on the related Mortgaged Properties or REO Properties. Such Insurance
Policy may contain a deductible clause, in which case the applicable Master
Servicer or the Special Servicer shall, if there shall not have been maintained
on the related Mortgaged Property or REO Property a fire and hazard Insurance
Policy complying with the requirements of Section 3.07(a), and there shall have
been one or more losses which would have been covered by such Insurance Policy,
promptly deposit into the applicable Certificate Account from its own funds the
amount of such loss or losses that would have been covered under the individual
policy but are not covered under the blanket Insurance Policy because of such
deductible clause to the extent that any such deductible exceeds the deductible
limitation that pertained to the related Mortgage Loan, including any Serviced
Whole Loan, or in the absence of such deductible limitation, the deductible
limitation which is consistent with the Servicing Standards. In connection with
its activities as administrator and Master Servicer of the Mortgage Loans, each
Master Servicer agrees to prepare and present, on behalf of itself, the Trustee
and Certificateholders, claims under any such blanket Insurance Policy in a
timely fashion in accordance with the terms of such policy. The Special
Servicer, to the extent consistent with the Servicing Standards, may maintain,
earthquake insurance on REO Properties, provided coverage is available at
commercially reasonable rates, the cost of which shall be a Servicing Advance.
(ii) If any Master Servicer or the Special Servicer shall cause any
Mortgaged Property or REO Property to be covered by a master single
interest or force-placed insurance policy with a Qualified Insurer naming
such Master Servicer or the Special Servicer, as applicable, on behalf of
the Trustee as the loss payee, then to the extent such Insurance Policy
provides protection equivalent to the individual policies otherwise
required, such Master Servicer or the Special Servicer shall conclusively
be deemed to have satisfied its obligation to cause such insurance to be
maintained on the related Mortgaged Properties and REO Properties. In the
event the applicable Master Servicer or the Special Servicer shall cause
any Mortgaged Property or REO Property to be covered by such master single
interest or force-placed insurance policy, the incremental costs of such
insurance applicable to such Mortgaged Property or REO Property (i.e.
other than any minimum or standby premium payable for such policy whether
or not any Mortgaged Property or REO Property is covered thereby) shall be
paid by such Master Servicer as a Servicing Advance. Such master single
interest or force-placed policy may contain a deductible clause, in which
case the applicable Master Servicer or the Special Servicer shall, in the
event that there shall not have been maintained on the related Mortgaged
Property or REO Property a policy otherwise complying with the provisions
of Section 3.07(a), and there shall have been one or more losses which
would have been covered by such policy had it been maintained, deposit
into its Certificate Account from its own funds the amount not otherwise
payable under the master single or force-placed interest policy because of
such deductible clause, to the extent that any such deductible exceeds the
deductible limitation that pertained to the related Mortgage Loan,
including any Serviced Whole Loan or, in the absence of any such
deductible limitation, the deductible limitation which is consistent with
the Servicing Standards.
(c) Each of the Master Servicers and the Special Servicer shall
obtain and maintain at its own expense and keep in full force and effect
throughout the term of this Agreement a blanket fidelity bond and an errors and
omissions Insurance Policy with a Qualified Insurer covering such Master
Servicer's and the Special Servicer's, as the case may be, officers and
employees acting on behalf of such Master Servicer and the Special Servicer in
connection with its activities under this Agreement. Notwithstanding the
foregoing, so long as the long term debt or the deposit obligations or
claims-paying ability of the applicable Master Servicer or the Special Servicer,
as the case may be, is rated at least "A3" by Xxxxx'x, "A" by S&P and "A" by
Fitch, the Master Servicer or the Special Servicer, as applicable, shall be
allowed to provide self-insurance with respect to a fidelity bond and an "errors
and omissions" Insurance Policy. Such amount of coverage shall be in such form
and amount as are consistent with the Servicing Standards. Coverage of any
Master Servicer or the Special Servicer under a policy or bond obtained by an
Affiliate of the applicable Master Servicer or the Special Servicer and
providing the coverage required by this Section 3.07(c) shall satisfy the
requirements of this Section 3.07(c). The Special Servicer and the applicable
Master Servicer will promptly report in writing to the Trustee any material
changes that may occur in their respective fidelity bonds, if any, and/or their
respective errors and omissions Insurance Policies, as the case may be, and will
furnish to the Trustee copies of all binders and policies or certificates
evidencing that such bonds, if any, and insurance policies are in full force and
effect. The Master Servicers and the Special Servicer shall each cause the
Trustee to be an additional loss payee on any policy currently in place or
procured pursuant to the requirements of this Section 3.07(c).
(d) At the time any Master Servicer determines in accordance with
the Servicing Standards that any Mortgaged Property securing a Mortgage Loan it
is obligated to service hereunder is in a federally designated special flood
hazard area (and such flood insurance has been made available), such Master
Servicer will use efforts consistent with the Servicing Standards to cause the
related Mortgagor (in accordance with applicable law and the terms of the
Mortgage Loan documents) to maintain, and, if the related Mortgagor shall
default in its obligation to so maintain, shall itself maintain to the extent
available at commercially reasonable rates (as determined by such Master
Servicer, in accordance with the Servicing Standards and to the extent the
Trustee, as mortgagee, has an insurable interest therein), flood insurance in
respect thereof, but only to the extent the related Mortgage Loan or Companion
Loan permits the mortgagee to require such coverage and the maintenance of such
coverage is consistent with the Servicing Standards. Such flood insurance shall
be in an amount equal to the lesser of (i) the unpaid principal balance of the
related Mortgage Loan and Companion Loan, and (ii) the maximum amount of
insurance which is available under the National Flood Insurance Act of 1968, as
amended. If the cost of any insurance described above is not borne by the
Mortgagor, the applicable Master Servicer shall promptly make a Servicing
Advance for such costs.
(e) During all such times as any REO Property (other than with
respect to the Skyline Portfolio Mortgaged Property, the Solana Mortgaged
Property and the Americold Pool 2 Mortgaged Property) shall be located in a
federally designated special flood hazard area, the Special Servicer will cause
to be maintained, to the extent available at commercially reasonable rates (as
determined by the Special Servicer in accordance with the Servicing Standards),
a flood insurance policy meeting the requirements of the current guidelines of
the Federal Insurance Administration in an amount representing coverage not less
than the maximum amount of insurance which is available under the National Flood
Insurance Act of 1968, as amended. The cost of any such flood insurance with
respect to an REO Property shall be an expense of the Trust payable out of the
related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, paid by the applicable Master Servicer as a
Servicing Advance.
Section 3.08 Enforcement of Due-on-Sale Clauses; Assumption
Agreements. (a) Subject to Section 3.28, as to each Mortgage Loan (other than
the Non-Serviced Mortgage Loans) or Companion Loan which contains a provision in
the nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan or Companion Loan shall (or may
at the mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property or ownership
interest in the related Mortgagor or principals of the Mortgagor; or
(ii) provides that such Mortgage Loan or Companion Loan may not be
assumed without the consent of the mortgagee in connection with any such
sale or other transfer,
then, for so long as such Mortgage Loan or Companion Loan is being serviced
under this Agreement, the Special Servicer or, with respect to all Non-Specially
Serviced Mortgage Loans, the applicable Master Servicer, on behalf of the
Trustee as the mortgagee of record, shall exercise (or waive its right to
exercise) the rights of the lender in the Mortgage Loan Documents provided, that
(i) with respect to all Non-Specially Serviced Mortgage Loans, such Master
Servicer has obtained the prior written consent of the Special Servicer, which
consent shall be deemed given 15 Business Days after receipt by the Special
Servicer from such Master Servicer of such Master Servicer's analysis and
recommendation with respect to such waiver together with such other information
reasonably required by the Special Servicer, (ii) with respect to all Specially
Serviced Mortgage Loans and Non-Specially Serviced Mortgage Loans, the Special
Servicer shall, prior to consenting to such a proposed action of a Master
Servicer, obtain, and, prior to itself taking such an action, the Special
Servicer shall obtain, the prior written consent of the Directing
Certificateholder, which consent shall be deemed given 10 Business Days after
receipt by the Directing Certificateholder of such Master Servicer's and Special
Servicer's, as applicable, analysis and recommendation with respect to such
waiver together with such other information reasonably required by the Directing
Certificateholder, and (iii) with respect to any Mortgage Loan (x) with a Stated
Principal Balance greater than or equal to $20,000,000, (y) with a Stated
Principal Balance greater than 5% of the aggregate Stated Principal Balance of
all the Mortgage Loans then outstanding or (z) together with any other Mortgage
Loans cross-collateralized with such Mortgage Loan, or together with all other
Mortgage Loans with the same or an affiliated Mortgagor, is one of the ten
largest of the then outstanding Mortgage Loans, by Stated Principal Balance, the
applicable Master Servicer or the Special Servicer, as the case may be, shall
not take such action unless it has obtained confirmation from each Rating Agency
stating that none of the then-current rating or ratings of all outstanding
Classes of the Certificates and, if applicable, of the Companion Loan
Securities, would be qualified, downgraded or withdrawn by such Rating Agency,
as a result of such waiver.
Notwithstanding anything herein to the contrary, the Master Servicers
shall approve and close, without the consent of the Special Servicer or the
Directing Certificateholder, all transfers of tenants-in-common ownership
interests contemplated by and in accordance with the related Mortgage Loan
Documents for those Mortgage Loans set forth on Exhibit FF, provided such
Mortgage Loans are Non-Specially Serviced Mortgage Loans and there are no
waivers or modifications with respect to conditions for such transfers set forth
in the applicable Mortgage Loan Documents as of the Closing Date. Upon
completion of any such transfer, such Master Servicer shall promptly (i) provide
notice thereof to the Special Servicer and (ii) advise the Special Servicer as
to total number of transfers with respect to such Non-Specially Serviced
Mortgage Loan that such Master Servicer has approved and closed as of such date
and the expiration date (if any) by which any such transfer(s) must occur
pursuant to the related Mortgage Loan Documents.
(b) Subject to Section 3.28, as to each Mortgage Loan (other than
the Non-Serviced Mortgage Loans) and Companion Loan which contains a provision
in the nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan and Companion Loan shall (or
may at the mortgagee's option) become due and payable upon the creation of
any additional lien or other encumbrance on the related Mortgaged Property
or ownership interest in the related Mortgagor or principals of the
Mortgagor; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property or ownership interest in the related Mortgagor or principals of
the Mortgagor;
then, for so long as such Mortgage Loan and Companion Loan is serviced under
this Agreement, the Special Servicer or, with respect to all Non-Specially
Serviced Mortgage Loans, the applicable Master Servicer, on behalf of the
Trustee as the mortgagee of record, shall exercise (or waive its right to
exercise) any right it may have with respect to such Mortgage Loan or Companion
Loan (x) to accelerate the payments thereon or (y) to withhold its consent,
provided, that (i) (a) with respect to all Non-Specially Serviced Mortgage
Loans, such Master Servicer has made a recommendation and obtained the prior
written consent of the Special Servicer, which consent shall be deemed given ten
(10) Business Days after receipt by the Special Servicer from the applicable
Master Servicer of such Master Servicer's analysis and recommendation with
respect to such waiver together with such other information reasonably required
by the Special Servicer and (b) the Special Servicer has obtained (i) the prior
written consent of the Directing Certificateholder, which consent shall be
deemed given 10 Business Days after receipt by the Directing Certificateholder
of the Special Servicer's analysis and recommendation with respect to such
waiver together with such other information reasonably required by the Directing
Certificateholder, and (ii) from each Rating Agency a confirmation that such
waiver would not result in the downgrade, withdrawal or qualification of the
then-current ratings on any Class of outstanding Certificates or any class of
Companion Loan Securities if such Mortgage Loan (1) has an outstanding principal
balance (together with any Mortgage Loans cross-collateralized with such
Mortgage Loan) that is greater than or equal to 2% of the Stated Principal
Balance of the outstanding Mortgage Loans or (2) has an LTV Ratio (including
existing and proposed debt) greater than 85% (including any proposed debt) or
(3) a Debt Service Coverage Ratio less than 1.20x (in each case, determined
based upon the aggregate of the Stated Principal Balance of the Mortgage Loan
and the principal amount of the proposed additional loan) or (4) is one of the
ten (10) largest Mortgage Loans (by Stated Principal Balance) or (5) has a
Stated Principal Balance over $20,000,000.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(d) Except as otherwise permitted by Sections 3.20 and 3.08(a), (b)
and (e), neither the Master Servicers nor the Special Servicer shall agree to
modify, waive or amend any term of any Mortgage Loan in connection with the
taking of, or the failure to take, any action pursuant to this Section 3.08. The
Special Servicer shall provide copies of any waivers it effects pursuant to
Section 3.08(a) or (b) to the Master Servicers and each Rating Agency with
respect to each Mortgage Loan. To the extent not previously provided, the Master
Servicers shall provide copies of any waivers they effect pursuant to Section
3.08(a) or (b) to the Special Servicer and each Rating Agency with respect to
each Mortgage Loan.
(e) Notwithstanding any other provisions of this Section 3.08 or
Section 3.20 but subject to Section 3.28, each Master Servicer may with respect
to Non-Specially Serviced Mortgage Loans, without any Directing
Certificateholder approval, Rating Agency confirmation or Special Servicer
approval (provided, the applicable Master Servicer delivers notice thereof to
the Special Servicer and Directing Certificateholder, except to the extent that
the Special Servicer or the Directing Certificateholder, as the case may be,
notifies such Master Servicer that such party does not desire to receive copies
of such items), (i) grant waivers of non-material covenant defaults (other than
financial covenants), including late financial statements; (ii) grant releases
of non-material, non-income producing parcels of a Mortgaged Property that do
not materially affect the use or value of the Mortgaged Property or the ability
of the related Mortgagor to pay amounts due in respect of the Mortgage Loan as
and when due provided such releases are required by the related Mortgage Loan
documents; (iii) approve or consent to grants of easements or right of way for
utilities, access, parking, public improvements or another purpose or
subordinations of the lien of Mortgage Loans to easements that do not materially
affect the use or value of a Mortgaged Property or a Mortgagor's ability to make
any payments with respect to the related Mortgage Loan; (iv) grant other routine
approvals, including the granting of subordination, non-disturbance and
attornment agreements and leasing consents that affect less than the lesser of
(a) 25% of the net rentable area of the Mortgaged Property, or (b) 30,000 square
feet; (v) consent to actions related to condemnation of non-material, non-income
producing parcels of the Mortgaged Property that do not materially affect the
use or value of the Mortgaged Property or the ability of the related Mortgagor
to pay amounts due in respect of the Mortgage Loan or Companion Loan as and when
due; (vi) consent to a change in property management relating to any Mortgage
Loan or Companion Loan with respect to Mortgage Loans or Companion Loans with an
outstanding principal balance of less than $2,500,000; and (vii) approve of
annual operating budgets; provided, that any such modification, waiver or
amendment (w) would not in any way affect a payment term of the Certificates,
(x) would not constitute a "significant modification" of such Mortgage Loan or
Companion Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would
not otherwise cause any of the Upper-Tier REMIC, the Middle-Tier REMIC or
Lower-Tier REMIC to fail to qualify as a REMIC or cause the Grantor Trust to
fail to qualify as a grantor trust under subpart E, Part I of subchapter J of
the Code for federal income tax purposes, (y) agreeing to such modification,
waiver or amendment would be consistent with the Servicing Standards, and (z)
agreeing to such modification, waiver or amendment shall not violate the terms,
provisions or limitations of this Agreement or any Intercreditor Agreement or
other Mortgage Loan Document contemplated hereby.
(f) Notwithstanding any other provision of this Agreement, each
Master Servicer may not waive its rights or grant its consent under any "due on
sale" or "due on encumbrance" clause without the consent of the Special Servicer
and the Special Servicer may not waive its rights or grant its consent under any
"due-on-sale" or "due-on-encumbrance" clause relating to a Non-Specially
Serviced Mortgage Loan having a Stated Principal Balance greater than or equal
to $2,500,000 or relating to any Specially Serviced Mortgage Loan without the
consent of the Directing Certificateholder. The Directing Certificateholder
shall have 10 Business Days after receipt of notice along with the applicable
Master Servicer's or Special Servicer's recommendation and analysis with respect
to such waiver and any additional information the Directing Certificateholder
may reasonably request from the Special Servicer of a proposed waiver or consent
under any "due on sale" or "due on encumbrance" clause in which to grant or
withhold its consent (provided, that if the Special Servicer fails to receive a
response to such notice from the Directing Certificateholder in writing within
such period, then the Directing Certificateholder shall be deemed to have
consented to such proposed waiver or consent).
Section 3.09 Realization Upon Defaulted Mortgage Loans. (a) The
Special Servicer shall, subject to subsections (b) through (d) of this Section
3.09 and Section 3.28, exercise reasonable efforts, consistent with the
Servicing Standards, to foreclose upon or otherwise comparably convert (which
may include an REO Acquisition) the ownership of property securing such Mortgage
Loans (other than the Non-Serviced Mortgage Loans) or Companion Loans, as come
into and continue in default as to which no satisfactory arrangements can be
made for collection of delinquent payments, and which are not released from the
Trust Fund pursuant to any other provision hereof. The foregoing is subject to
the provision that, in any case in which a Mortgaged Property shall have
suffered damage from an Uninsured Cause, the applicable Master Servicer or
Special Servicer shall not be required to make a Servicing Advance and expend
funds toward the restoration of such property unless the Special Servicer has
determined in its reasonable discretion that such restoration will increase the
net proceeds of liquidation of such Mortgaged Property to Certificateholders
after reimbursement to such Master Servicer for such Servicing Advance, and such
Master Servicer or Special Servicer has not determined that such Servicing
Advance together with accrued and unpaid interest thereon would constitute a
Nonrecoverable Advance. The costs and expenses incurred by the Special Servicer
in any such proceedings shall be advanced by the applicable Master Servicer,
provided that, in each case, such cost or expense would not, if incurred,
constitute a Nonrecoverable Servicing Advance. Nothing contained in this Section
3.09 shall be construed so as to require the applicable Master Servicer or the
Special Servicer, on behalf of the Trust, to make a bid on any Mortgaged
Property at a foreclosure sale or similar proceeding that is in excess of the
fair market value of such property, as determined by such Master Servicer or the
Special Servicer in its reasonable judgment taking into account the factors
described in Section 3.18(b) and the results of any Appraisal obtained pursuant
to the following sentence, all such bids to be made in a manner consistent with
the Servicing Standards. If and when the Special Servicer or the applicable
Master Servicer deems it necessary and prudent for purposes of establishing the
fair market value of any Mortgaged Property securing a Defaulted Mortgage Loan
or defaulted Companion Loan, whether for purposes of bidding at foreclosure or
otherwise, the Special Servicer or such Master Servicer, as the case may be, is
authorized to have an Appraisal performed with respect to such property by an
Independent MAI-designated appraiser the cost of which shall be paid by such
Master Servicer as a Servicing Advance.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incidental to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be paid by the applicable Master Servicer as a
Servicing Advance) to the effect that the holding of such personal
property by the Trust Fund (to the extent not allocable to a Companion
Loan) will not cause the imposition of a tax on the Upper-Tier REMIC, the
Middle-Tier REMIC or the Lower-Tier REMIC under the REMIC Provisions or
cause the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC
to fail to qualify as a REMIC at any time that any Uncertificated
Lower-Tier Interest, any Uncertificated Middle-Tier Interest, the Class
A-2SFL Regular Interest, the Class A-JFL Regular Interest or any
Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09
and Section 3.28, neither the Special Servicer nor the Master Servicers shall,
on behalf of the Trustee, obtain title to a Mortgaged Property in lieu of
foreclosure or otherwise, or take any other action with respect to any Mortgaged
Property, if, as a result of any such action, the Trustee, on behalf of the
Certificateholders and/or any related Companion Holder(s), would be considered
to hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law, unless (as evidenced by an Officer's Certificate to such effect
delivered to the Trustee) the Special Servicer has previously determined in
accordance with the Servicing Standards, based on an Environmental Assessment of
such Mortgaged Property performed by an Independent Person who regularly
conducts Environmental Assessments and performed within six months prior to any
such acquisition of title or other action, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions as
are necessary to bring the Mortgaged Property in compliance therewith is
reasonably likely to produce a greater recovery on a net present value
basis than not taking such actions, for such purposes taking into account
any insurance coverage provided pursuant to any environmental insurance
polices in effect and obtained on behalf of the Mortgagee with respect to
the related Mortgaged Property; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could be required, that
taking such actions with respect to such Mortgaged Property is reasonably
likely to produce a greater recovery on a net present value basis than not
taking such actions.
The cost of any such Environmental Assessment shall be paid by the
applicable Master Servicer as a Servicing Advance and the cost of any remedial,
corrective or other further action contemplated by clause (i) and/or clause (ii)
of the preceding sentence shall be paid by the applicable Master Servicer at the
direction of the Special Servicer as a Servicing Advance, unless it is a
Nonrecoverable Servicing Advance (in which case it shall be an expense of the
Trust Fund, in the case of any Serviced Whole Loan, may be withdrawn in
accordance with the related Intercreditor Agreement by the applicable Master
Servicer from the Certificate Account, including from the sub-account relating
to the related Companion Loans (such withdrawal to be made from amounts on
deposit therein that are otherwise payable on or allocable to the related
Companion Loans)); and if any such Environmental Assessment so warrants, the
Special Servicer shall (except with respect to any Companion Loan and any
Environmental Assessment ordered after the related Serviced Mortgage Loan has
been paid in full), at the expense of the Trust Fund, perform such additional
environmental testing as it deems necessary and prudent to determine whether the
conditions described in clauses (i) and (ii) of the preceding sentence have been
satisfied. With respect to Non-Specially Serviced Mortgage Loans, the applicable
Master Servicer and, with respect to Specially Serviced Mortgage Loans, the
Special Servicer shall review and be familiar with the terms and conditions
relating to making claims and shall monitor the dates by which any claim or
action must be taken (including delivering any notices to the insurer and using
reasonable efforts to perform any actions required under such policy) under each
environmental insurance policy in effect and obtained on behalf of the mortgagee
to receive the maximum proceeds available under such policy for the benefit of
the Certificateholders and the Trustee (as holder of the Class A-2SFL Regular
Interest, the Class A-JFL Regular Interest, the Uncertificated Middle-Tier
Interests and the Uncertificated Lower-Tier Interests).
(d) If (i) the environmental testing contemplated by subsection (c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan and any related Companion
Loan(s) and (ii) there has been no breach of any of the representations and
warranties set forth in or required to be made pursuant to Section 6 of the
applicable Mortgage Loan Purchase Agreement for which the applicable Mortgage
Loan Seller could be required to repurchase such Defaulted Mortgage Loan
pursuant to Section 6 of the applicable Mortgage Loan Purchase Agreement, then
the Special Servicer shall take such action as it deems to be in the best
economic interest of the Trust Fund (other than proceeding to acquire title to
the Mortgaged Property) and is hereby authorized at such time as it deems
appropriate to release such Mortgaged Property from the lien of the related
Mortgage, provided that, if such Mortgage Loan has a then outstanding principal
balance of greater than $1,000,000, then prior to the release of the related
Mortgaged Property from the lien of the related Mortgage, (i) the Special
Servicer shall have notified the Rating Agencies, the Trustee, the applicable
Master Servicer and the Directing Certificateholder in writing of its intention
to so release such Mortgaged Property and the bases for such intention, (ii) the
Trustee shall have notified the Certificateholders in writing of the Special
Servicer's intention to so release such Mortgaged Property, (iii) the Holders of
Certificates entitled to a majority of the Voting Rights shall have consented to
such release within 30 days of the Trustee's distributing such notice (failure
to respond by the end of such 30-day period being deemed consent), (iv) the
Special Servicer shall have received written confirmation from each Rating
Agency that such release will not cause the downgrade, withdrawal or
qualification of any of the then-current ratings of any Class of Certificates or
class of Companion Loan Securities and (v) if required under the related
Intercreditor Agreement, the Special Servicer shall have received the consent of
any related Companion Holder. To the extent any fee charged by each Rating
Agency in connection with rendering such written confirmation is not paid by the
related Mortgagor, such fee is to be an expense of the Trust provided, that the
applicable Master Servicer and the Special Servicer, as the case may be, shall
use its reasonable efforts to collect such fee from the Mortgagor to the extent
permitted under the related Mortgage Loan documents.
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Trustee, the Directing Certificateholder,
each Rating Agency and the applicable Master Servicer (and, if required under
the related Intercreditor Agreement, to any related Companion Holder) monthly
regarding any actions taken by the Special Servicer with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan or defaulted Companion
Loan as to which the environmental testing contemplated in subsection (c) above
has revealed that either of the conditions set forth in clauses (i) and (ii) of
the first sentence thereof has not been satisfied, in each case until the
earlier to occur of satisfaction of both such conditions, repurchase of the
related Mortgage Loan by the applicable Mortgage Loan Seller or release of the
lien of the related Mortgage on such Mortgaged Property. The Trustee shall
forward, or cause to be forwarded all such reports to each Rating Agency and the
Certificateholders upon request.
(f) The Special Servicer shall notify the applicable Master Servicer
of any abandoned and/or foreclosed properties which require reporting to the
Internal Revenue Service and shall provide such Master Servicer with all
information regarding forgiveness of indebtedness and required to be reported
with respect to any Mortgage Loan or Companion Loan which is abandoned or
foreclosed and such Master Servicer shall report to the Internal Revenue Service
and the related Mortgagor, in the manner required by applicable law, such
information and such Master Servicer shall report, via Form 1099C or any
successor form, all forgiveness of indebtedness to the extent such information
has been provided to such Master Servicer by the Special Servicer. Upon request,
each Master Servicer shall deliver a copy of any such report to the Trustee.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standards, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan and applicable Companion
Loan permit such an action.
(h) The Special Servicer shall maintain accurate records, prepared
by one of its Servicing Officers, of each Final Recovery Determination in
respect of a Defaulted Mortgage Loan (other than with respect to the
Non-Serviced Mortgage Loans), defaulted Companion Loan or REO Property and the
basis thereof. Each Final Recovery Determination shall be evidenced by an
Officer's Certificate promptly delivered to the Trustee, the Directing
Certificateholder and the applicable Master Servicer and in no event later than
the next succeeding P&I Advance Determination Date.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files. (a)
Upon the payment in full of any Mortgage Loan (other than the Non-Serviced
Mortgage Loans), or the receipt by any Master Servicer or the Special Servicer,
as the case may be, of a notification that payment in full shall be escrowed in
a manner customary for such purposes, such Master Servicer or Special Servicer,
as the case may be, will immediately notify the Trustee and request delivery of
the related Mortgage File. Any such notice and request shall be in the form of a
Request for Release signed by a Servicing Officer and shall include a statement
to the effect that all amounts received or to be received in connection with
such payment which are required to be deposited in the applicable Certificate
Account pursuant to Section 3.04(a) or remitted to the applicable Master
Servicer to enable such deposit, have been or will be so deposited. Within seven
Business Days (or within such shorter period as release can reasonably be
accomplished if the applicable Master Servicer or the Special Servicer notifies
the Trustee of an exigency) of receipt of such notice and request, the Trustee
shall release, or cause any related Custodian to release, the related Mortgage
File to the applicable Master Servicer or Special Servicer, as the case may be;
provided, however, that in the case of the payment in full of a Serviced Whole
Loan, the Mortgage Loan File with respect to the related Serviced Whole Loan
shall not be released by the Trustee (and the Master Servicer or Special
Servicer shall not request such release) unless such Mortgage Loan that is paid
in full is the sole remaining portion of the related Serviced Whole Loan. If the
Mortgage has been recorded in the name of MERS or its designee, the applicable
Master Servicer shall take all necessary and reasonable actions to reflect the
release of the Mortgage on the records of MERS. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the Certificate Account.
(b) From time to time as is appropriate for servicing or foreclosure
of any Mortgage Loan (other than the Non-Serviced Mortgage Loans) (and any
related Companion Loan), the applicable Master Servicer or the Special Servicer
shall deliver to the Trustee a Request for Release signed by a Servicing
Officer. Upon receipt of the foregoing, the Trustee shall deliver or cause the
related Custodian to deliver, the Mortgage File or any document therein to the
applicable Master Servicer or the Special Servicer (or a designee), as the case
may be. Upon return of such Mortgage File or such document to the Trustee or the
related Custodian, or the delivery to the Trustee of a certificate of a
Servicing Officer of the applicable Master Servicer or the Special Servicer, as
the case may be, stating that such Mortgage Loan was liquidated and that all
amounts received or to be received in connection with such liquidation which are
required to be deposited into the applicable Certificate Account pursuant to
Section 3.04(a) have been or will be so deposited, or that such Mortgage Loan
has become an REO Property, a copy of the Request for Release shall be released
by the Trustee to the applicable Master Servicer or the Special Servicer (or a
designee), as the case may be, with the original being released upon termination
of the Trust.
(c) Within seven Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee (or the Co-Trustee, in the case of the Solana Mortgage Loan) of an
exigency) of receipt thereof, the Trustee (or the Co-Trustee, in the case of the
Solana Mortgage Loan) shall execute and deliver to the Special Servicer any
court pleadings, requests for trustee's sale or other documents necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note
(including any note evidencing the related Companion Loan) or Mortgage or to
obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at law or in
equity. The Special Servicer shall be responsible for the preparation of all
such documents and pleadings. When submitted to the Trustee (or the Co-Trustee,
in the case of the Solana Mortgage Loan) for signature, such documents or
pleadings shall be accompanied by a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee (or the
Co-Trustee, in the case of the Solana Mortgage Loan) and certifying as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee (or the Co-Trustee, in the case of the Solana
Mortgage Loan) will not invalidate or otherwise affect the lien of the Mortgage,
except for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
(d) If, from time to time, pursuant to the terms of any related
Intercreditor Agreement and the related Non-Serviced Pooling Agreement, and as
appropriate for enforcing the terms of the applicable Non-Serviced Mortgage
Loan, the related master servicer requests delivery to it of the original
Mortgage Note for the applicable Non-Serviced Mortgage Loan, then the Trustee
(or the Co-Trustee, in the case of the Solana Mortgage Loan) shall release or
cause the release of such original Mortgage Note to the related master servicer
or its designee.
Section 3.11 Servicing Compensation. (a) As compensation for its
activities hereunder, each Master Servicer shall be entitled to receive the
Servicing Fee with respect to each Mortgage Loan, each Companion Loan (to the
extent permitted in the related Intercreditor Agreement) and REO Loan (including
Specially Serviced Mortgage Loans) that it is responsible for servicing
hereunder. As to each Mortgage Loan, Companion Loan and REO Loan, the Servicing
Fee shall accrue from time to time at the Servicing Fee Rate and shall be
computed on the basis of the Stated Principal Balance of such Mortgage Loan or
Companion Loan or REO Loan, as the case may be, and in the same manner as
interest is calculated on such Mortgage Loan, Companion Loan or REO Loan, as the
case may be, and, in connection with any partial month interest payment, for the
same period respecting which any related interest payment due on such Mortgage
Loan, Companion Loan or REO Loan or deemed to be due on such REO Loan is
computed. The Servicing Fee with respect to any Mortgage Loan, Companion Loan or
REO Loan shall cease to accrue if a Liquidation Event occurs in respect thereof,
except that if such asset is part of a Serviced Whole Loan and such Serviced
Whole Loan continues to be serviced and administered under this Agreement
notwithstanding such Liquidation Event, then the applicable Servicing Fee shall
continue to accrue and be payable by the holder thereof as if such Liquidation
Event did not occur. The Servicing Fee shall be payable monthly, on a
loan-by-loan basis, from payments of interest on each Mortgage Loan, Companion
Loan and REO Revenues allocable as interest on each REO Loan, and as otherwise
provided by Section 3.05(a). Each Master Servicer shall be entitled to recover
unpaid Servicing Fees in respect of any Mortgage Loan, Companion Loan or REO
Loan out of that portion of related payments, Insurance and Condemnation
Proceeds, Liquidation Proceeds and REO Revenues (in the case of an REO Loan)
allocable as recoveries of interest, to the extent permitted by Section 3.05(a).
Except as set forth in the third paragraph of this Section 3.11(a), Sections
6.02, 6.04 and 7.01(c), the right to receive the Servicing Fee may not be
transferred in whole or in part.
Each Master Servicer shall be entitled to retain, and shall not be
required to deposit in its Certificate Account pursuant to Section 3.04(a),
additional servicing compensation (other than with respect to the Non-Serviced
Mortgage Loans) in the form of (i) 100% of modification, waiver and consent fees
on transactions made pursuant to Section 3.08(e) with respect to the Mortgage
Loans that such Master Servicer is responsible for servicing, provided the
consent of the Special Servicer is not required to take such action, (ii) 100%
of all defeasance fees and 50% of all application fees received on Non-Specially
Serviced Mortgage Loans that it is responsible for servicing and (iii) 50% of
all assumption, waiver and consent fees on transactions made pursuant to Section
3.08(a) and Section 3.08(b) on the Non-Specially Serviced Mortgage Loans that it
is responsible for servicing, to the extent that such fees are paid by the
Mortgagor and for which the Special Servicer's consent or approval is required
on the Non-Specially Serviced Mortgage Loans and only to the extent that all
amounts then due and payable with respect to the related Mortgage Loan have been
paid. In addition, each Master Servicer shall be entitled to retain as
additional servicing compensation (other than with respect to the Non-Serviced
Mortgage Loans) any charges for processing Mortgagor requests, beneficiary
statements or demands, reasonable and customary consent fees, fees in connection
with defeasance, if any, and other customary charges, and amounts collected for
checks returned for insufficient funds, in each case only to the extent actually
paid by the related Mortgagor and shall not be required to deposit such amounts
in its Certificate Account or the Companion Distribution Account pursuant to
Section 3.04(a); provided, the applicable Master Servicer shall not be entitled
to any charge or fees for defeasances, releases or assumptions received on the
Non-Serviced Mortgage Loans. Subject to Section 3.11(d), each Master Servicer
shall also be entitled to additional servicing compensation in the form of: (i)
Penalty Charges to the extent provided in Section 3.11(d), (ii) interest or
other income earned on deposits relating to the Trust Fund in its Certificate
Account or the Companion Distribution Account in accordance with Section 3.06(b)
(but only to the extent of the Net Investment Earnings, if any, with respect to
such account for the period from the prior P&I Advance Date to the P&I Advance
Date related to such Distribution Date), (iii) interest or other income earned
on deposits in the Servicing Account which are not required by applicable law or
the related Mortgage Loan to be paid to the Mortgagor and (iv) the difference,
if positive, between Prepayment Interest Excess and Prepayment Shortfalls
collected on the Mortgage Loans during the related Due Period to the extent not
required to be paid as Compensating Interest Payments. Each Master Servicer
shall be required to pay out of its own funds all expenses incurred by it in
connection with its servicing activities hereunder (including, without
limitation, payment of any amounts due and owing to any of its Sub-Servicers and
the premiums for any blanket Insurance Policy insuring against hazard losses
pursuant to Section 3.07), if and to the extent such expenses are not payable
directly out of its Certificate Account and such Master Servicer shall not be
entitled to reimbursement therefor except as expressly provided in this
Agreement.
Notwithstanding anything herein to the contrary, Master Servicer No.
1 may at its option assign or pledge to any third party or retain for itself the
Transferable Servicing Interest; provided, however, that in the event of any
resignation or termination of such Master Servicer, all or any portion of the
Transferable Servicing Interest may be reduced by the Trustee to the extent
reasonably necessary (in the sole discretion of the Trustee) for the Trustee to
obtain a qualified successor Master Servicer (which successor may include the
Co-Trustee) that meets the requirements of Section 6.04 and who requires market
rate servicing compensation that accrues at a per annum rate in excess of the
Retained Fee Rate, and any such assignment of the Transferable Servicing
Interest shall, by its terms be expressly subject to the terms of this Agreement
and such reduction. Master Servicer No. 1 shall pay the Transferable Servicing
Interest to the holder of the Transferable Servicing Interest at such time and
to the extent Master Servicer No. 1 is entitled to receive payment of its
Servicing Fees hereunder, notwithstanding any resignation or termination of
Master Servicer No. 1 hereunder (subject to reduction pursuant to the preceding
sentence).
(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and REO Loan (other than the Non-Serviced
Mortgage Loans and any successor REO Loan). As to each Specially Serviced
Mortgage Loan and REO Loan (other than the Non-Serviced Mortgage Loans and any
successor REO Loan), the Special Servicing Fee shall accrue from time to time at
the Special Servicing Fee Rate and shall be computed on the basis of the Stated
Principal Balance of such Specially Serviced Mortgage Loan or REO Loan, as the
case may be, and in the same manner as interest is calculated on the Specially
Serviced Mortgage Loans or REO Loans, as the case may be, and, in connection
with any partial month interest payment, for the same period respecting which
any related interest payment due on such Specially Serviced Mortgage Loan or
deemed to be due on such REO Loan is computed. The Special Servicing Fee with
respect to any Specially Serviced Mortgage Loan or REO Loan shall cease to
accrue if a Liquidation Event occurs in respect thereof. The Special Servicing
Fee shall be payable monthly, on a loan-by-loan basis, in accordance with the
provisions of Section 3.05(a). The right to receive the Special Servicing Fee
may not be transferred in whole or in part except in connection with the
transfer of all of the Special Servicer's responsibilities and obligations under
this Agreement. The Special Servicer shall not be entitled to any Special
Servicing Fees with respect to the Non-Serviced Mortgage Loans.
(c) Additional servicing compensation in the form of (i) 100% of all
fees with respect to application, assumption, extension, modification, waiver,
consent, earnout and defeasance fees, in each case, received on any Specially
Serviced Mortgage Loans (other than the Non-Serviced Mortgage Loans and any
successor REO Loan) to the extent such fees are paid by the Mortgagor, (ii) 50%
of all application fees received on Non-Specially Serviced Mortgage Loans and
(iii) 50% of all assumption, waiver and consent fees on transactions made
pursuant to Section 3.08(a) and 3.08(b) or 3.20 received with respect to all Non
Specially Serviced Mortgage Loans and for which the Special Servicer's consent
or approval is required, shall be promptly paid to the Special Servicer by the
applicable Master Servicer to the extent such fees are paid by the Mortgagor and
shall not be required to be deposited in the applicable Certificate Account
pursuant to Section 3.04(a). The Special Servicer shall also be entitled to
additional servicing compensation in the form of a Workout Fee with respect to
each Corrected Mortgage Loan at the Workout Fee Rate on such Mortgage Loan for
so long as it remains a Corrected Mortgage Loan. The Workout Fee with respect to
any Corrected Mortgage Loan will cease to be payable if such loan again becomes
a Specially Serviced Mortgage Loan; provided that a new Workout Fee will become
payable if and when such Specially Serviced Mortgage Loan again becomes a
Corrected Mortgage Loan. The Special Servicer shall not be entitled to any
Workout Fee with respect to the Non-Serviced Mortgage Loans. If the Special
Servicer is terminated (other than for cause) or resigns, it shall retain the
right to receive any and all Workout Fees payable in respect of Mortgage Loans
or Companion Loans that became Corrected Mortgage Loans prior to the time of
that termination or resignation except the Workout Fees will no longer be
payable if the Mortgage Loan subsequently becomes a Specially Serviced Mortgage
Loan. If the Special Servicer resigns or is terminated (other than for cause),
it will receive any Workout Fees payable on Specially Serviced Mortgage Loans
for which the resigning or terminated Special Servicer had cured the event of
default through a modification, restructuring or workout negotiated by the
Special Servicer and evidenced by a signed writing with respect to which one (1)
scheduled payment has been made, but which had not as of the time the Special
Servicer resigned or was terminated become a Corrected Mortgage Loan solely
because the Mortgagor had not had sufficient time to make three consecutive
timely Monthly Payments and which subsequently becomes a Corrected Mortgage Loan
as a result of the Mortgagor making such three consecutive timely Monthly
Payments. The successor Special Servicer will not be entitled to any portion of
such Workout Fees. The Special Servicer will not be entitled to receive any
Workout Fees after termination for cause. A Liquidation Fee will be payable with
respect to each Specially Serviced Mortgage Loan (other than the Non-Serviced
Mortgage Loans) or REO Property as to which the Special Servicer receives any
Liquidation Proceeds or Insurance and Condemnation Proceeds subject to the
exceptions set forth in the definition of Liquidation Fee (such Liquidation Fee
to be paid out of such Liquidation Proceeds, Insurance and Condemnation
Proceeds). Notwithstanding anything to the contrary described above, no
Liquidation Fee will be payable based on, or out of, Liquidation Proceeds as set
forth in the proviso to the definition of "Liquidation Fee." If, however,
Liquidation Proceeds or Insurance and Condemnation Proceeds are received with
respect to any Corrected Mortgage Loan and the Special Servicer is properly
entitled to a Workout Fee, such Workout Fee will be payable based on and out of
the portion of such Liquidation Proceeds and Insurance and Condemnation Proceeds
that constitute principal and/or interest on such Mortgage Loan. Notwithstanding
anything herein to the contrary, the Special Servicer shall only be entitled to
receive a Liquidation Fee or a Workout Fee, but not both, with respect to
proceeds on any Mortgage Loan. Notwithstanding the foregoing, with respect to
any subordinate Companion Loan, the Liquidation Fee, Workout Fee and Special
Servicing Fees, if any, will be computed only if permitted, and to the extent
provided, in the related Intercreditor Agreement. Subject to Section 3.11(d),
the Special Servicer will also be entitled to additional fees in the form of
Penalty Charges to the extent provided in subsection (d). The Special Servicer
shall be required to pay out of its own funds all expenses incurred by it in
connection with its servicing activities hereunder (including, without
limitation, payment of any amounts, other than management fees in respect of REO
Properties, due and owing to any of its Sub-Servicers and the premiums for any
blanket Insurance Policy obtained by it insuring against hazard losses pursuant
to Section 3.07), if and to the extent such expenses are not expressly payable
directly out of the applicable Certificate Account or the REO Account, and the
Special Servicer shall not be entitled to reimbursement therefor except as
expressly provided in this Agreement.
(d) In determining the compensation of the Master Servicers or
Special Servicer, as applicable, with respect to Penalty Charges, on any
Distribution Date, the aggregate Penalty Charges collected on any Mortgage Loan
since the prior Distribution Date shall be applied (in such order) to reimburse
(i) the applicable Master Servicer or the Co-Trustee for interest on Advances on
such Mortgage Loan (and, in connection with any Non-Serviced Mortgage Loan, the
related master servicer, special servicer or trustee under the related
Non-Serviced Pooling Agreement for interest on the Servicing Advances made by
any such party with respect to the related Whole Loan pursuant to the related
Non-Serviced Pooling Agreement, to the extent so provided in the related
Intercreditor Agreement) due on such Distribution Date, (ii) the Trust Fund for
all interest on Advances previously paid to the applicable Master Servicer or
the Co-Trustee pursuant to Section 3.05(a)(vi) hereof (and, in connection with
the Skyline Portfolio Mortgage Loan or the Solana Mortgage Loan, the BACM 2007-1
Trust for all interest on Servicing Advances reimbursed by the BACM 2007-1 Trust
to any party under the BACM 2007-1 Pooling Agreement, which resulted in an
additional trust fund expense for the BACM 2007-1 Trust, to the extent so
provided in the Skyline Portfolio Intercreditor Agreement or the Solana
Intercreditor Agreement, as applicable, and, in connection with the Americold
Pool 2 Mortgage Loan, the JPMCC 2007-CIBC18 Trust for all interest on Servicing
Advances reimbursed by the JPMCC 2007-CIBC18 Trust to any party under the JPMCC
2007-CIBC18 Pooling Agreement, which resulted in an additional trust fund
expense for the JPMCC 2007-CIBC18 Trust, to the extent so provided in the
Americold Pool 2 Intercreditor Agreement) with respect to such Mortgage Loan and
(iii) the Trust Fund for costs of all additional Trust Fund expenses (including
Special Servicing Fees, Workout Fees and Liquidation Fees), including without
limitation, inspections by the Special Servicer and all unpaid Advances incurred
since the Closing Date with respect to such Mortgage Loan; Penalty Charges
(other than with respect to the Non-Serviced Mortgage Loans, which shall be
payable as additional servicing compensation under the applicable Non-Serviced
Pooling Agreement) remaining thereafter shall be distributed to the applicable
Master Servicer, if and to the extent collected while the Mortgage Loan was a
Non-Specially Serviced Mortgage Loan and to the Special Servicer if and to the
extent actually collected on such Mortgage Loan during the period such Mortgage
Loan was a Specially Serviced Mortgage Loan. Notwithstanding the foregoing,
Penalty Charges with respect to any subordinate Companion Loan will be allocated
pursuant to the applicable Intercreditor Agreement after payment of all related
Advances and interest thereon.
Notwithstanding the foregoing, but subject to the terms of any
related Intercreditor Agreement, with respect to any Serviced Whole Loan
Remittance Date, any and all Penalty Charges that are actually collected on the
related Serviced Whole Loan since the prior related Serviced Whole Loan
Remittance Date, shall be applied for the following purposes and in the
following order, in each case to the extent of the remaining portion of such
Penalty Charges:
first, toward the payment of or reimbursement for accrued and unpaid
interest on (i) any presently outstanding Servicing Advances made with respect
to the related Serviced Whole Loan, and (ii) any previously paid Servicing
Advances made with respect to the related Serviced Whole Loan to the extent that
the advance interest has been paid from a source other than Penalty Charges;
second, toward the payment of or reimbursement for accrued and
unpaid interest on (i) any presently outstanding principal and interest advances
(including P&I Advances hereunder and any advances comparable to P&I Advances
made under a securitization agreement governing any Serviced Securitized
Companion Loan) made with respect to the related Serviced Mortgage Loan and/or
any related Companion Loan, and (ii) any previously paid principal and interest
advances (including P&I Advances hereunder and any advances comparable to P&I
Advances made under an Other Pooling and Servicing Agreement governing any
Serviced Securitized Companion Loan) made with respect to the related Serviced
Mortgage Loan and/or any such related Serviced Securitized Companion Loan, to
the extent that the advance interest has been paid from a source other than
Penalty Charges;
third, toward the payment of or reimbursement for (i) any presently
outstanding expenses payable under the related Intercreditor Agreement, other
than Special Servicing Fees, and (ii) any previously paid expenses payable under
the related Intercreditor Agreement, other than Special Servicing Fees, to the
extent that the expense has been paid from a source other than Penalty Charges;
and
fourth, to pay any remaining portion of such Penalty Charges with
respect to the related Serviced Whole Loan as additional servicing compensation
to the Master Servicer, to the extent received, if and to the extent accrued
while the related Serviced Whole Loan was a Non-Specially Serviced Mortgage
Loan, and to the Special Servicer, to the extent received, if and to the extent
accrued while the related Serviced Whole Loan was a Specially Serviced Mortgage
Loan.
As among the various holders of the related Mortgage Loan, the
related Serviced Whole Loans and Serviced AB Loans, the payments and
reimbursements under each relevant clause shall be made first to the Mortgage
Loan and related pari passu Companion Loan(s) pro rata and pari passu among
those holders according to the respective amounts described in that clause that
are attributable to each of them and then to any related subordinate Companion
Loan.
Section 3.12 Inspections; Collection of Financial Statements. (a)
Each Master Servicer shall perform (at its own expense), or shall cause to be
performed (at its own expense), a physical inspection of each Mortgaged Property
(other than the Skyline Portfolio Mortgaged Property, the Solana Mortgaged
Property and the Americold Pool 2 Mortgaged Property) securing a Mortgage Loan
that it is responsible for servicing hereunder with a stated Principal Balance
of (i) $2,000,000 or more at least once every 12 months and (ii) less than
$2,000,000 at least once every 24 months, in each case commencing in the
calendar year 2008 (and each Mortgaged Property shall be inspected on or prior
to March 2009); provided, however, that if a physical inspection has been
performed by the Special Servicer in the previous 12 months and such Master
Servicer has no knowledge of a material change in the Mortgaged Property since
such physical inspection, such Master Servicer will not be required to perform
or cause to be performed, such physical inspection; provided, further, that if
any scheduled payment becomes more than 60 days delinquent on the related
Mortgage Loan, the Special Servicer shall inspect or cause to be inspected the
related Mortgaged Property as soon as practicable after such Mortgage Loan
becomes a Specially Serviced Mortgage Loan and annually thereafter for so long
as such Mortgage Loan remains a Specially Serviced Mortgage Loan. The cost of
such inspection by the Special Servicer shall be an expense of the Trust Fund,
and to the extent not paid by the related Mortgagor reimbursed first from
Penalty Charges (but with respect to any Serviced Whole Loan, only from amounts
available for such purpose under the related Intercreditor Agreement) actually
received from the related Mortgagor and then from the applicable Certificate
Account pursuant to Section 3.05(a)(ii). The Special Servicer or the applicable
Master Servicer, as the case may be, shall prepare or cause to be prepared a
written report of each such inspection detailing the condition of the Mortgaged
Property revealed by the inspection and specifying the existence of (i) any
vacancy in the Mortgaged Property that the preparer of such report deems
material, (ii) any sale, transfer or abandonment of the Mortgaged Property of
which it has knowledge, (iii) any adverse change in the condition of the
Mortgaged Property that the preparer of such report deems material and is
evident from the inspection, (iv) any visible material waste committed on the
Mortgaged Property and (v) photographs of each inspected Mortgaged Property. The
Special Servicer and the applicable Master Servicer shall deliver a copy of each
such report prepared by the Special Servicer and the applicable Master Servicer,
respectively, to the other, to the Directing Certificateholder and, upon
request, to the Trustee and the Rating Agencies within five (5) Business Days
after request (or if such request is received before such report is completed,
within five (5) Business Days after completion of such report). The Trustee
shall deliver a copy of each such report to the Controlling Class
Certificateholder (and with respect to a Serviced Whole Loan, the related
Companion Holder) upon request and to each Holder of a Class B, Class B-S, Class
C, Class C-S, Class D, Class D-S, Class E, Class E-S, Class F, Class F-S, Class
G, Class G-S, Class H, Class H-S, Class J, Class K, Class L, Class M, Class N,
Class P and Class NR Certificate, upon request (which such request may state
that such items be delivered until further notice).
(b) The Special Servicer, in the case of any Specially Serviced
Mortgage Loans, and the applicable Master Servicer, in the case of any
Non-Specially Serviced Mortgage Loans, shall make reasonable efforts to collect
promptly from each Mortgagor annual operating statements and rent rolls of the
related Mortgaged Property, financial statements of such Mortgagor and any other
reports required to be delivered under the terms of the Mortgage Loans (and each
Companion Loan), if delivery of such items is required pursuant to the terms of
the related Mortgage.
(c) The Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the applicable Master Servicer, in the case of any
Non-Specially Serviced Mortgage Loan shall make reasonable efforts to collect
promptly from each related Mortgagor quarterly operating statements, budgets and
rent rolls of the related Mortgaged Property, and the quarterly financial
statements of such Mortgagor, whether or not delivery of such items is required
pursuant to the terms of the related Mortgage. Each Master Servicer shall not be
required to request such statements more than once if the related Mortgagor is
not required to deliver such statements pursuant to the terms of the Mortgage
Loan documents. In addition, the Special Servicer shall cause quarterly and
annual operating statements, budgets and rent rolls to be regularly prepared in
respect of each REO Property and shall collect all such items promptly following
their preparation. The Special Servicer shall deliver all such items to the
applicable Master Servicer within five (5) days of receipt and such Master
Servicer and the Special Servicer each shall deliver copies of all the foregoing
items so collected thereby to the Trustee, the Directing Certificateholder and,
upon request, to the Depositor and each other (and, if required under any
related Intercreditor Agreement, to any related Companion Holder), in each case
within 60 days of its receipt thereof, but in no event, in the case of annual
statements, later than June 30 of each year commencing June 30, 2007. The
Trustee shall, upon request, deliver copies (in hard copy, electronic format or
make available on its Internet website) of the foregoing items to the
Underwriters, the Trustee, the Rating Agencies, the Controlling Class
Certificateholders, the Mortgage Loan Sellers or, to the extent the Certificate
Registrar has confirmed the Ownership Interest in Certificates held thereby, any
Certificate Owner, a copy (or image in suitable electronic media) of each such
report prepared by the applicable Master Servicer or the Special Servicer.
Within 45 days after receipt by the applicable Master Servicer, with
respect to Non-Specially Serviced Mortgage Loans it is responsible for servicing
hereunder, or the Special Servicer with respect to Specially Serviced Mortgage
Loans of any annual operating statements or rent rolls with respect to any
Mortgaged Property or REO Property, or if such date would be after June 30 of
any year, then within 30 days after receipt, such Master Servicer shall, based
upon such operating statements or rent rolls received, prepare (or, if
previously prepared, update) the analysis of operations and the CMSA NOI
Adjustment Worksheet and the CMSA Operating Statement Analysis Report. In
connection with preparing the CMSA NOI Adjustment Worksheets and the CMSA
Operating Statement Analysis Reports, the Master Servicer shall process (a)
interim financial statements beginning with interim financial statements for the
fiscal quarter ending June 30, 2007, and (b) annual financial statements
beginning with annual financial statements for the 2007 fiscal year. Upon the
occurrence and continuation of a Servicing Transfer Event, the applicable Master
Servicer shall provide the Special Servicer with all prior CMSA Operating
Statement Analysis Reports and CMSA NOI Adjustment Worksheets for the related
Mortgage Loan (including underwritten figures), and the Special Servicer's
obligations hereunder shall be subject to its having received all such reports.
The applicable Master Servicer and Special Servicer shall forward to the other
and the Directing Certificateholder electronically monthly all operating
statements and rent rolls received from any Mortgagor from the prior month. All
CMSA Operating Statement Analysis Reports and CMSA NOI Adjustment Worksheets
shall be maintained by the applicable Master Servicer with respect to each
Mortgaged Property (other than the Skyline Portfolio Mortgaged Property, the
Solana Mortgaged Property and the Americold Pool 2 Mortgaged Property) and REO
Property, and such Master Servicer shall forward copies (in hard copy,
electronic format or make available on its Internet website) thereof and the
related operating statements or rent rolls (in each case, promptly following the
initial preparation and each material revision thereof) to the Trustee (in
electronic format only), the Directing Certificateholder (and with respect to a
Serviced Whole Loan, to the related Companion Holder) and the Special Servicer.
The Trustee shall, upon request and to the extent such items have been delivered
to the Trustee by the applicable Master Servicer, deliver to the Underwriters,
the Rating Agencies, the Mortgage Loan Sellers, any Certificateholder or, to the
extent the Certificate Registrar has confirmed the Ownership Interest in the
Certificates held thereby, any Certificate Owner, a copy of such CMSA Operating
Statement Analysis Report (or update thereof) and CMSA NOI Adjustment Worksheet
(or update thereof), upon written request, and the related operating statement
or rent rolls. The applicable Master Servicer shall maintain a CMSA Operating
Statement Analysis Report and a CMSA NOI Adjustment Worksheet with respect to
each Mortgaged Property and REO Property.
(d) At or before 12:00 p.m. (New York City time) on each
Determination Date, the Special Servicer shall prepare and deliver or cause to
be delivered to the applicable Master Servicer and the Directing
Certificateholder the CMSA Special Servicer Loan File with respect to the
Specially Serviced Mortgage Loans and any REO Properties (other than the Skyline
Portfolio Mortgaged Property, the Solana Mortgaged Property and the Americold
Pool 2 Mortgaged Property), providing the information required of the Special
Servicer in an electronic format, reasonably acceptable to such Master Servicer
as of the Business Day preceding such Determination Date, which CMSA Special
Servicer Loan File shall include data, to enable such Master Servicer to produce
the following CMSA Supplemental Reports: (i) a CMSA Delinquent Loan Status
Report, (ii) a CMSA REO Status Report, (iii) a CMSA Historical Loan Modification
and Corrected Mortgage Loan Report, (iv) a CMSA Comparative Financial Status
Report and (v) a CMSA NOI Adjustment Worksheet and a CMSA Operating Statement
Analysis Report.
(e) Not later than 4:00 p.m. (New York City time) on each P&I
Advance Date, beginning in June 2007, the applicable Master Servicer shall
prepare (if and to the extent necessary) and deliver or cause to be delivered in
electronic format to the Trustee the following reports and data files: (i) to
the extent the applicable Master Servicer has received the CMSA Special Servicer
Loan File at the time required, the most recent CMSA Delinquent Loan Status
Report, CMSA Historical Loan Modification and Corrected Mortgage Loan Report and
CMSA REO Status Report, (ii) the most recent CMSA Property File, and CMSA
Comparative Financial Status Report (in each case incorporating, to the extent
the Master Servicer has received the CMSA Special Servicer Loan File, the data
required to be included in the CMSA Special Servicer Loan File pursuant to
Section 3.12(d) by the Special Servicer and Master Servicer), (iii) a CMSA
Servicer Watch List with information that is current as of such Determination
Date, (iv) CMSA Financial File, (v) CMSA Loan Level Reserve LOC Report, (vi) the
Realized Loss Report and (vii) the CMSA Advance Recovery Report. Not later than
2:00 p.m. (New York City time) two (2) Business Days prior to the Distribution
Date, the applicable Master Servicer shall deliver or cause to be delivered to
the Trustee via electronic format the CMSA Loan Setup File (with respect to the
first Distribution Date) and the CMSA Loan Periodic Update File. In no event
shall any report described in this subsection be required to reflect information
that has not been collected by or delivered to the applicable Master Servicer,
or any payments or collections not received by the applicable Master Servicer,
as of the close of business on the Determination Date.
(f) The Special Servicer shall deliver to the Master Servicers the
reports required of the Special Servicer pursuant to Section 3.12(c) and Section
3.12(d), and each Master Servicer shall deliver to the Trustee the reports and
data files set forth in Section 3.12(e). Each Master Servicer may, absent
manifest error, conclusively rely on the reports and/or data to be provided by
the Special Servicer pursuant to Section 3.12(c) and Section 3.12(d). The
Trustee may, absent manifest error, conclusively rely on the reports and/or data
to be provided by each Master Servicer pursuant to Section 3.12(e). In the case
of information or reports to be furnished by any Master Servicer to the Trustee
pursuant to Section 3.12(e), to the extent that such information or reports are,
in turn, based on information or reports to be provided by the Special Servicer
pursuant to Section 3.12(c) or Section 3.12(d) and to the extent that such
reports are to be prepared and delivered by the Special Servicer pursuant to
Section 3.12(c) or Section 3.12(d), such Master Servicer shall have no
obligation to provide such information or reports to the Trustee until it has
received the requisite information or reports from the Special Servicer, and
such Master Servicer shall not be in default hereunder due to a delay in
providing the reports required by Section 3.12(e) caused by the Special
Servicer's failure to timely provide any information or report required under
Section 3.12(c) or Section 3.12(d) of this Agreement.
(g) Notwithstanding the foregoing, however, the failure of any
Master Servicer or Special Servicer to disclose any information otherwise
required to be disclosed by this Section 3.12 shall not constitute a breach of
this Section 3.12 to the extent such Master Servicer or Special Servicer so
fails because such disclosure, in the reasonable belief of such Master Servicer
or the Special Servicer, as the case may be, would violate any applicable law or
any provision of a Mortgage Loan document prohibiting disclosure of information
with respect to the Mortgage Loans or Mortgaged Properties. Each Master Servicer
and Special Servicer may disclose any such information or any additional
information to any Person so long as such disclosure is consistent with
applicable law and the Servicing Standards. Each Master Servicer or the Special
Servicer may affix to any information provided by it any disclaimer it deems
appropriate in its reasonable discretion (without suggesting liability on the
part of any other party hereto).
(h) Unless otherwise specifically stated herein, if any Master
Servicer or the Special Servicer is required to deliver any statement, report or
information under any provisions of this Agreement, such Master Servicer or the
Special Servicer, as the case may be, may satisfy such obligation by (x)
physically delivering a paper copy of such statement, report or information, (y)
delivering such statement, report or information in a commonly used electronic
format or (z) except with respect to information to be provided to the Trustee
and the Directing Certificateholder, making such statement, report or
information available on such Master Servicer's or the Special Servicer's
Internet website, unless this Agreement expressly specifies a particular method
of delivery.
Notwithstanding the foregoing, each Master Servicer and the Special
Servicer shall deliver any statements, reports or other information to the
Trustee in an electronic format mutually agreeable to the Trustee and such
Master Servicer, or the Special Servicer as the case may be. Each Master
Servicer or the Special Servicer may physically deliver a paper copy of any such
statement, report or information as a temporary measure due to system problems.
Section 3.13 [RESERVED]
Section 3.14 [RESERVED]
Section 3.15 Access to Certain Information. Each of the Master
Servicers and the Special Servicer shall provide or cause to be provided to any
Certificateholder or Certificate Owner that is, or is affiliated with, a
federally insured financial institution, the Trustee, the Co-Trustee, the
Depositor, each Mortgage Loan Seller, each Rating Agency, the Directing
Certificateholder to the applicable Master Servicer, or to the Special Servicer,
as applicable, and to the OTS, the FDIC, the Federal Reserve Board and the
supervisory agents and examiners of such boards and such corporations, and any
other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, and to each Holder of a Class B,
Class B-S, Class C, Class C-S, Class D, Class D-S, Class E, Class E-S, Class F,
Class F-S, Class G, Class G-S, Class H, Class H-S, Class J, Class K, Class L,
Class M, Class N, Class P or Class NR Certificate, and to each Companion Holder
(solely with respect to the related Serviced Whole Loan) access to any
documentation or information regarding the Mortgage Loans and related Companion
Loans and the Trust Fund within its control which may be required by this
Agreement or by applicable law. At the election of each Master Servicer or the
Special Servicer, such access may be afforded to such Person identified above by
the delivery of copies of information as requested by such Person and such
Master Servicer or the Special Servicer shall be permitted to require payment
(other than from the Directing Certificateholder, of a sum sufficient to cover
the reasonable out-of-pocket costs incurred by it in making such copies. Such
access shall (except as described in the preceding sentence) be afforded without
charge but only upon reasonable prior written request and during normal business
hours at the offices of each Master Servicer or the Special Servicer, as the
case may be, designated by it; provided, however, that Certificateholders and
Certificate Owners shall be required to pay their own photocopying costs and
execute a reasonable and customary confidentiality agreement with respect to
such information. The failure of any Master Servicer or the Special Servicer to
provide access as provided in this Section 3.15 as a result of a confidentiality
obligation shall not constitute a breach of this Section 3.15; provided that
nothing in this paragraph shall provide a basis for not providing to the
Directing Certificateholder any information specifically required to be
delivered to it under the terms of this Agreement. The Master Servicers and the
Special Servicer may each deny any of the foregoing persons access to
confidential information or any intellectual property which such Master Servicer
or the Special Servicer is restricted by license or contract from disclosing. In
connection with providing access to information pursuant to this Section 3.15 to
parties other than the Trustee and the Co-Trustee, each Master Servicer and the
Special Servicer may each (i) affix a reasonable disclaimer to any information
provided by it for which it is not the original source (without suggesting
liability on the part of any other party hereto); (ii) affix to any information
provided by it a reasonable statement regarding securities law restrictions on
such information and/or condition access to information on the execution of a
reasonable confidentiality agreement; (iii) withhold access to confidential
information or any intellectual property; and (iv) withhold access to items of
information contained in the Servicing File for any Mortgage Loan if the
disclosure of such items is prohibited by applicable law or the provisions of
any related Mortgage Loan documents or would constitute a waiver of the
attorney-client privilege. Notwithstanding any provision of this Agreement to
the contrary, the failure of any Master Servicer or the Special Servicer to
disclose any information otherwise required to be disclosed by it pursuant to
this Agreement shall not constitute a breach of this Agreement to the extent
that such Master Servicer or the Special Servicer, as the case may be,
determines, in its reasonable good faith judgment consistent with the applicable
Servicing Standards, that such disclosure would violate applicable law or any
provision of a Mortgage Loan document or Companion Loan document prohibiting
disclosure of information with respect to the Mortgage Loans or Companion Loans
or the Mortgaged Properties, constitute a waiver of the attorney-client
privilege on behalf of the Trust or the Trust Fund or otherwise materially harm
the Trust or the Trust Fund.
Section 3.16 Title to REO Property; REO Account. (a) If title to any
REO Property is acquired, the deed or certificate of sale shall be issued to the
Trustee or a nominee thereof on behalf of the Certificateholders and, if
applicable, on behalf of the Companion Holders. REO Property with respect to the
Non-Serviced Mortgage Loans is excluded for all purposes of this Section 3.16;
provided, that the Trustee shall cooperate with the special servicer under the
applicable Non-Serviced Pooling Agreement in obtaining an REO Extension (as
defined below) with respect to a Non-Serviced Mortgage Loan. The Special
Servicer, on behalf of the Trust Fund and, if applicable, the Companion Holders,
shall sell any REO Property prior to the close of the third calendar year
following the year in which the Trust Fund acquires ownership of such REO
Property, within the meaning of Treasury Regulations Section 1.856-6(b)(1), for
purposes of Section 860G(a)(8) of the Code, unless the Special Servicer either
(i) is granted an extension of time (an "REO Extension") by the Internal Revenue
Service to sell such REO Property or (ii) obtains for the Trustee and the
applicable Master Servicer an Opinion of Counsel, addressed to the Trustee and
the applicable Master Servicer, to the effect that the holding by the Trust Fund
of such REO Property subsequent to the close of the third calendar year
following the year in which such acquisition occurred will not cause the
imposition of a tax on the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC or cause the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interest or Certificate is outstanding. If the Special
Servicer is granted the REO Extension contemplated by clause (i) of the
immediately preceding sentence or obtains the Opinion of Counsel contemplated by
clause (ii) of the immediately preceding sentence, the Special Servicer shall
sell such REO Property within such longer period as is permitted by such REO
Extension or such Opinion of Counsel, as the case may be. Any expense incurred
by the Special Servicer in connection with its being granted the REO Extension
contemplated by clause (i) of the second preceding sentence or its obtaining the
Opinion of Counsel contemplated by clause (ii) of the second preceding sentence,
shall be an expense of the Trust Fund payable out of the applicable Certificate
Account pursuant to Section 3.05(a).
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more REO Accounts, held on
behalf of the Trustee in trust for the benefit of the Certificateholders and, if
applicable, on behalf of the Companion Holder(s), as their interest shall
appear, and the Trustee (as holder of the Class A-2SFL Regular Interest, the
Class A-JFL Regular Interest, the Uncertificated Lower-Tier Interests and the
Uncertificated Middle-Tier Interests), for the retention of revenues and other
proceeds derived from each REO Property. The REO Account shall be an Eligible
Account. The Special Servicer shall deposit, or cause to be deposited, in the
REO Account, within 1 Business Day after receipt, all REO Revenues, Insurance
and Condemnation Proceeds and Liquidation Proceeds received in respect of an REO
Property. Funds in the REO Account may be invested in Permitted Investments in
accordance with Section 3.06. The Special Servicer shall give notice to the
Trustee and the applicable Master Servicer of the location of the REO Account
when first established and of the new location of the REO Account prior to any
change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, insuring, leasing, maintenance
and disposition of any REO Property, but only to the extent of amounts on
deposit in the REO Account relating to such REO Property. On or prior to each
Determination Date (or with respect to any Companion Loan related to a Serviced
Whole Loan, on the Business Day prior to each related Serviced Whole Loan
Remittance Date), the Special Servicer shall withdraw from the REO Account and
remit to the applicable Master Servicer, which shall deposit into its related
Certificate Account (or such subaccount of the applicable Certificate Account
for each Companion Loan, as applicable), the aggregate of all amounts received
in respect of each REO Property during the most recently ended Due Period, net
of (i) any withdrawals made out of such amounts pursuant to the preceding
sentence and (ii) Net Investment Earnings on amounts on deposit in the REO
Account; provided, however, that the Special Servicer may retain in such REO
Account, in accordance with the Servicing Standards, such portion of such
balance as may be necessary to maintain a reasonable reserve for repairs,
replacements, leasing, management and tenant improvements and other related
expenses for the related REO Property. In addition, on or prior to each
Determination Date (or with respect to any Serviced Securitized Companion Loan,
on the Business Day prior to each related Serviced Whole Loan Remittance Date),
the Special Servicer shall provide the applicable Master Servicer with a written
accounting of amounts remitted to the such Master Servicer for deposit in its
related Certificate Account, as applicable, on such date. The applicable Master
Servicer shall apply all such amounts as instructed by the Special Servicer on
the Determination Date (or with respect to any Companion Loan related to a
Serviced Whole Loan, on the Business Day prior to on each related Serviced Whole
Loan Remittance Date) for the related Distribution Date.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
Section 3.17 Management of REO Property. (a) If title to any REO
Property is acquired, the Special Servicer shall manage, consent, protect,
operate and lease such REO Property for the benefit of the Certificateholders
and the Companion Holders, as applicable, and the Trustee (as holder of the
Class A-2SFL Regular Interest, the Class A-JFL Regular Interest, the
Uncertificated Lower-Tier Interests and the Uncertificated Middle-Tier
Interests) solely for the purpose of its timely disposition and sale in a manner
that does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or result in the
receipt by the Trust Fund or any holder of a Serviced Securitized Companion Loan
of any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code or result in an Adverse REMIC Event. Subject to the
foregoing, however, the Special Servicer shall have full power and authority to
do any and all things in connection therewith as are in the best interests of
and for the benefit of the Certificateholders (and, in the case of each Serviced
Whole Loan, the related Companion Holder(s)) and the Trustee (as holder of the
Class A-2SFL Regular Interest, the Class A-JFL Regular Interest, the
Uncertificated Lower-Tier Interests and the Uncertificated Middle-Tier
Interests) all as a collective whole (as determined by the Special Servicer in
its reasonable judgment in accordance with the Servicing Standards and any
related Intercreditor Agreements). REO Property with respect to the Non-Serviced
Mortgage Loans is excluded for all purposes of this Section 3.17. Subject to
this Section 3.17, the Special Servicer may allow the Trust Fund or any
commercial mortgage securitization that holds a Serviced Securitized Companion
Loan to earn "net income from foreclosure property" within the meaning of
Section 860G(d) of the Code if it determines that earning such income is in the
best interests of Certificateholders and, if applicable, any related Companion
Holder(s) on a net after-tax basis as compared with net leasing such REO
Property or operating such REO Property on a different basis. In connection
therewith, the Special Servicer shall deposit or cause to be deposited on a
daily basis (and in no event later than 1 Business Day following receipt of such
funds) in the applicable REO Account all revenues received by it with respect to
each REO Property and the related REO Loan, and shall withdraw from the REO
Account, to the extent of amounts on deposit therein with respect to such REO
Property, funds necessary for the proper operation, management, leasing and
maintenance of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease such REO
Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in clauses
(i)-(iv) above with respect to such REO Property, the applicable Master Servicer
(subject to receiving notice from the Special Servicer in accordance with the
procedures set forth elsewhere in this Agreement) shall advance from its own
funds such amount as is necessary for such purposes unless (as evidenced by an
Officer's Certificate delivered to the Trustee, the Co-Trustee, the Depositor
and the Directing Certificateholder) such advances would, if made, constitute
Nonrecoverable Servicing Advances.
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms will
give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Mortgage Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any REO Property on any date
more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the applicable Master Servicer as a
Servicing Advance) to the effect that such action will not cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code at any time that it is held for the benefit of
the Trust Fund, in which case the Special Servicer may take such actions as are
specified in such Opinion of Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the acquisition date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund) shall be reasonable and customary in light of
the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection (a)
hereof, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated to manage and supervise
such Independent Contractor in accordance with the Servicing Standards.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(d) When and as necessary, the Special Servicer shall send to the
Trustee and the applicable Master Servicer a statement prepared by the Special
Servicer setting forth the amount of net income or net loss, as determined for
federal income tax purposes, resulting from the operation and management of a
trade or business on, the furnishing or rendering of a non-customary service to
the tenants of, or the receipt of any other amount not constituting Rents from
Real Property in respect of, any REO Property in accordance with Sections
3.17(a) and 3.17(b).
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties.
(a) (i) Within thirty (30) days after a Mortgage Loan has become a
Specially Serviced Mortgage Loan with respect to any Defaulted Mortgage Loan,
the Special Servicer shall order an Appraisal (but shall not be required to be
received) and within thirty (30) days of receipt of the Appraisal shall
determine the fair value of such Defaulted Mortgage Loan in accordance with the
Servicing Standards; provided, however, that such determination shall be made
without taking into account any effect the restrictions on the sale of such
Mortgage Loan contained herein may have on the value of such Defaulted Mortgage
Loan; provided, further, that if the Special Servicer is then in the process of
obtaining an Appraisal with respect to the related Mortgaged Property, the
Special Servicer shall make its fair value determination as soon as reasonably
practicable (but in any event within thirty (30) days) after its receipt of such
an Appraisal. The Special Servicer may, from time to time, adjust its fair value
determination based upon changed circumstances, new information and other
relevant factors, in each instance in accordance with a review of such
circumstances and new information in accordance with the Servicing Standards,
conducted not less often than every 90 days. The Special Servicer shall notify
the Trustee, the Master Servicers and the Certificateholder that owns the
largest aggregate Certificate Balance of the Controlling Class (the "Controlling
Class Option Holder") and any related Companion Holder, promptly upon its making
a fair value determination and any subsequent adjustment thereto. The Special
Servicer shall also deliver to the Master Servicers, the Rating Agencies and the
Controlling Class Option Holder and, if applicable, the related Companion Holder
(to the extent such parties have not already received), the most recent
Appraisal of the related Mortgaged Property then in the Special Servicer's
possession, together with such other third-party reports and other information
then in the Special Servicer's possession that the Special Servicer reasonably
believes to be relevant to the fair value determination with respect to such
Mortgage Loan (such materials are, collectively, the "Determination
Information"). If the Special Servicer will not be determining whether the
Option Price represents fair value of the Defaulted Mortgage Loan, pursuant to
the penultimate paragraph of Section 3.18(a)(iv), the Special Servicer shall
also deliver the Determination Information to the Trustee.
In determining the fair value of any Defaulted Mortgage Loan, the
Special Servicer shall take into account, among other factors, the period and
amount of the delinquency on such Mortgage Loan, the occupancy level and
physical condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, and the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property. In addition, the Special Servicer shall refer to the Determination
Information and all other relevant information obtained by it or otherwise
contained in the Mortgage File; provided that the Special Servicer shall take
account of any change in circumstances regarding the related Mortgaged Property
known to the Special Servicer that has occurred subsequent to, and that would,
in the Special Servicer's reasonable judgment, materially affect the value of
the related Mortgaged Property reflected in, the most recent related Appraisal.
Furthermore, the Special Servicer shall consider all available objective
third-party information obtained from generally available sources, as well as
information obtained from vendors providing real estate services to the Special
Servicer, concerning the market for distressed real estate loans and the real
estate market for the subject property type in the area where the related
Mortgaged Property is located. The Special Servicer may conclusively rely on the
opinion and reports of Independent third parties in making such determination.
(ii) Subject to the terms and conditions of clauses (d) and (e) of
this Section 3.18, at the time a Mortgage Loan becomes a Defaulted
Mortgage Loan, the Special Servicer and Controlling Class Option Holder
(each, together with their assignees, an "Option Holder") will have an
assignable option (the "Purchase Option") to purchase such Defaulted
Mortgage Loan from the Trust Fund at a price (the "Option Price") equal to
(A) if the Special Servicer has not yet determined the fair value of such
Defaulted Mortgage Loan, the sum of (1) the Stated Principal Balance
thereof, together with all accrued and unpaid interest thereon at the
Mortgage Rate, (2) any related Yield Maintenance Charge or prepayment
premium then payable (except if the Purchase Option is exercised by the
Controlling Class Option Holder), (3) all related Advances for which the
Trust Fund or the related Master Servicer has not been reimbursed,
together with all accrued and unpaid interest thereon at the Reimbursement
Rate to the extent not included in (1) above, and (4) all accrued Special
Servicing Fees and additional Trust Fund expenses allocable to such
Defaulted Mortgage Loan whether recovered or unrecovered from the related
Mortgagor or (B) if the Special Servicer has determined the fair value of
such Defaulted Mortgage Loan pursuant to clause (i) above, an amount at
least equal to such fair value. Notwithstanding the foregoing, for a
period of sixty (60) days after it receives notice of the Special
Servicer's fair value determination (the "Controlling Class
Certificateholder's Option Period"), only the Purchase Option held by the
Controlling Class Option Holder may be exercised.
Any Option Holder may sell, transfer, assign or otherwise convey its
Purchase Option with respect to any Defaulted Mortgage Loan to any party
at any time after the related Mortgage Loan becomes a Defaulted Mortgage
Loan. The transferor of any Purchase Option shall notify the Trustee and
the Master Servicers of such transfer and such notice shall include the
transferee's name, address, telephone number, facsimile number and
appropriate contact person(s) and shall be acknowledged in writing by the
transferee.
Each Option Holder's Purchase Option with respect to any Defaulted
Mortgage Loan, if not exercised, will automatically terminate (A) once the
related Defaulted Mortgage Loan is no longer a Defaulted Mortgage Loan;
provided, however, that if such Mortgage Loan subsequently becomes a
Defaulted Mortgage Loan, the related Purchase Option shall again be
exercisable, (B) upon the acquisition, by or on behalf of the Trust Fund,
of title to the related Mortgaged Property through foreclosure or deed in
lieu of foreclosure, (C) upon the modification or pay-off, in full or at a
discount, of such Defaulted Mortgage Loan in connection with a workout or
(D) subject to the applicable Master Servicer's determination set forth in
clause (iv) below, upon another Option Holder's exercise of its Purchase
Option with respect to the related Mortgage Loan becoming effective
pursuant to clause (iii) below.
(iii) Upon receipt of notice from the Special Servicer indicating
that a Mortgage Loan has become a Defaulted Mortgage Loan, and after the
expiration of the Controlling Class Certificateholder's Option Period,
each Option Holder (whether the original grantee of such option or any
subsequent transferee) may exercise its Purchase Option by providing the
Master Servicers, the Co-Trustee and the Trustee written notice thereof
(the "Purchase Option Notice"), in the form of Exhibit J, which notice
shall identify the Person that, on its own or through an Affiliate, will
acquire the related Mortgage Loan upon closing and shall specify a cash
exercise price at least equal to the Option Price. The Purchase Option
Notice shall be delivered in the manner specified in Section 11.05.
Immediately upon receipt of such Purchase Option Notice, the Special
Servicer shall notify the remaining Option Holders that a Purchase Option
has been exercised. Within ten (10) days thereafter, each remaining Option
Holder may submit to the Special Servicer a Purchase Option Notice for the
related Defaulted Mortgage Loan. Upon the expiration of such ten (10) day
period, or such sooner time as all remaining Option Holders have submitted
Purchase Option Notices, the Special Servicer shall notify the Option
Holder whose Purchase Option Notice included the highest exercise price
that the exercise of its Purchase Option is effective. The Special
Servicer shall also notify the Trustee of such effective exercise. In the
event that more than one Option Holder exercises its Purchase Option at
the same price, the Purchase Option Notice from the Controlling Class
Option Holder or its assignee or if none, then the first Purchase Option
Notice received by the Special Servicer shall be effective. The exercise
of any Purchase Option pursuant to this clause (iii) shall be irrevocable;
provided that the assignor of the Purchase Option shall have no liability
to the Trust or any other party hereto for the failure of its third party
assignee to close the sale of the Defaulted Mortgage Loan after its
exercise of the option, and upon such failure, the Purchase Option shall
revert to the Option Holder as provided herein as if the Purchase Option
had not been exercised, and the Special Servicer shall pursue against such
assignee whatever remedies it may have against the assignee.
(iv) If the Special Servicer or any Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, the applicable Master Servicer shall determine as soon as
reasonably practicable (and, in any event, within thirty (30) days) after
such Master Servicer has received the written notice and the Determination
Information to be provided to such Master Servicer by the Special Servicer
under Section 3.18(a)(i), whether the Option Price represents fair value
for the Defaulted Mortgage Loan; provided that, if the Special Servicer is
then in the process of obtaining a new Appraisal with respect to the
related Mortgaged Property, then such Master Servicer shall make its fair
value determination with respect to such Mortgage Loan as soon as
reasonably practicable (but in any event within thirty (30) days) after
such Master Servicer's receipt of such new Appraisal. Such fair value
determination shall be made in accordance with Servicing Standards. In
determining the fair value of any Defaulted Mortgage Loan, the applicable
Master Servicer shall take into account, among other factors, the period
and amount of the delinquency on such Mortgage Loan, the occupancy level
and physical condition of the related Mortgaged Property, the state of the
local economy in the area where the Mortgaged Property is located, and the
time and expense associated with a purchaser's foreclosing on the related
Mortgaged Property. In addition, the applicable Master Servicer shall
refer to the Determination Information and all other relevant information
delivered to it by the Special Servicer or otherwise contained in the
Mortgage File; provided that such Master Servicer shall take account of
any change in circumstances regarding the related Mortgaged Property known
to such Master Servicer that has occurred subsequent to, and that would,
in such Master Servicer's reasonable judgment, materially affect the value
of the related Mortgaged Property reflected in, such appraisal.
Furthermore, the applicable Master Servicer shall consider all available
objective third-party information obtained from generally available
sources, as well as information obtained from vendors providing real
estate services to the applicable Master Servicer, concerning the market
for distressed real estate loans and the real estate market for the
subject property type in the area where the related Mortgaged Property is
located. The applicable Master Servicer may conclusively rely on the
opinion and reports of Independent third parties in making such
determination. The applicable Master Servicer shall be entitled to receive
out of the applicable Certificate Account as additional compensation a
reasonable fee, not to exceed $2,500 plus reasonable out-of-pocket costs
and expenses, for each determination made in accordance with this clause
(iv), provided, however, with respect to any Mortgage Loan, such fee shall
be collectible once in any six-month period. The reasonable cost of all
third party consultants and related reports, including but not limited to
appraisals, inspection reports and broker opinions of value, reasonably
incurred by the applicable Master Servicer pursuant to this Section
3.18(a)(iv) shall constitute, and be reimbursable as, Servicing Advances;
provided that the applicable Master Servicer may rely on the most current
Appraisal and property inspection report obtained for the related
Mortgaged Property pursuant to Section 3.12. The other parties to this
Agreement shall cooperate with all reasonable requests for information.
Notwithstanding anything contained in this clause (iv) to the
contrary, if the Special Servicer or the Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, and the applicable Master Servicer and the Special Servicer
are Affiliates, the Trustee, subject to the Directing Certificateholder's
reasonable prior written consent, which consent shall not be unreasonably
withheld, shall designate an Independent third party, independent of the
Directing Certificateholder, to determine whether the Option Price
represents fair value for the Defaulted Mortgage Loan, in the manner and
within the time set forth in the first paragraph of this clause (iv). In
the event that the Trustee is called upon to designate such a third party
to make such determination, the Trustee will not assume any responsibility
for such third party's determination which determination the Trustee shall
be entitled to conclusively rely upon. The Trustee may pay such third
party a fee of up to $2,500. The reasonable costs of such Independent
third party appraisals, all inspection reports and broker opinions of
value, reasonably incurred by the Trustee or any such third party pursuant
to this paragraph shall be advanced by the applicable Master Servicer and
shall constitute, and be reimbursable as, Servicing Advances. In
connection with the Trustee's designating an Independent third party, the
Special Servicer shall deliver to the Trustee for such Independent third
party's use the Determination Information.
In the event the Trustee or any designated third party, as
applicable, determines that the Option Price is less than the fair value
of the Defaulted Mortgage Loan, such party shall provide its
determination, together with all information and reports it relied upon in
making such determination, to the Special Servicer, who may then adjust
its fair value determination and, consequently, the Option Price, pursuant
to Section 3.18(a)(i). The Special Servicer shall promptly provide written
notice of any adjustment of the Option Price to the Option Holder whose
Purchase Option has been declared effective pursuant to clause (iii)
above. Upon receipt of such notice, such Option Holder shall have three
(3) Business Days to (i) accept the Option Price as adjusted and proceed
in accordance with clause (v) below, or (ii) reject the Option Price as
adjusted, in which case such Option Holder shall not be obligated to close
the purchase of the Defaulted Mortgage Loan. Upon notice from such Option
Holder, or the Special Servicer, that such Option Holder rejects the
Option Price as adjusted, the applicable Master Servicer and the Trustee
shall provide the notices described in the second paragraph of clause (v)
below and thereafter any Option Holder may exercise its purchase option in
accordance with Section 3.18(a), at the Option Price as adjusted.
(v) The Option Holder whose Purchase Option is declared effective
pursuant to clause (iii) above shall be required to pay the purchase price
specified in its Purchase Option Notice to the applicable Master Servicer
within ten (10) Business Days of its receipt of the Special Servicer's
notice confirming that the exercise of its Purchase Option is effective.
Upon receipt of an Officer's Certificate from the Special Servicer
specifying the date for closing the purchase of the related Defaulted
Mortgage Loan, and the purchase price to be paid therefor, the Trustee
shall deliver at such closing for release to or at the direction of such
Option Holder, the related Mortgage File, and shall execute and deliver
such instruments of transfer or assignment, in each case without recourse,
as shall be provided to it by such Option Holder and are reasonably
necessary to vest in the purchaser or any designee thereof the ownership
of such Mortgage Loan on a servicing released basis. In connection with
any such purchase by any Person other than it, the Special Servicer shall
deliver the related Mortgage File to or at the direction of the purchaser.
In any case, the applicable Master Servicer shall deposit the purchase
price (except that portion of any purchase price constituting Gain-on-Sale
Proceeds which shall be deposited in the Gain-on-Sale Reserve Account)
into the applicable Certificate Account within one (1) Business Day
following the closing of the sale of the related Defaulted Mortgage Loan.
The Master Servicer shall immediately notify the Trustee and the
Special Servicer upon the holder of the effective Purchase Option's
failure to remit the purchase price specified in its Purchase Option
Notice pursuant to this clause (v). Thereafter, the Trustee shall notify
each Option Holder of such failure and any Option Holder may then exercise
its purchase option in accordance with this Section 3.18(a).
(vi) Unless and until the Purchase Option with respect to any
Defaulted Mortgage Loan is exercised or expires, the Special Servicer
shall pursue such other resolution strategies with respect to such
Defaulted Mortgage Loan, including, without limitation, workout and
foreclosure, as the Special Servicer may deem appropriate, consistent with
the Asset Status Report and the Servicing Standards and the REMIC
Provisions; provided, however, the Special Servicer shall not sell any
Defaulted Mortgage Loan (other than in connection with exercise of a
related Purchase Option or as otherwise permitted in this Section 3.18).
(b) (i) The Special Servicer may purchase any REO Property (at the
Purchase Price therefor) (in the case of a Serviced Whole Loan, such purchase
shall be a purchase of the entire REO Property, including the portion relating
to the Companion Loans). The Special Servicer may also offer to sell to any
Person any REO Property (in the case of a Serviced Whole Loan, such sale shall
be a sale of the entire REO Property, including the portion relating to the
Companion Loans), if and when the Special Servicer determines, consistent with
the Servicing Standards, that such a sale would be in the best economic
interests of the Trust Fund and the Companion Holders. The Special Servicer
shall give the Trustee, the applicable Master Servicer, each related Companion
Holder and the Directing Certificateholder not less than five (5) Business Days'
prior written notice of the Purchase Price and its intention to (i) purchase any
REO Property at the Purchase Price therefor or (ii) sell any REO Property, in
which case the Special Servicer shall accept the highest offer received from any
Person for any REO Property in an amount at least equal to the Purchase Price
therefor. To the extent permitted by applicable law, and subject to the
Servicing Standards, the applicable Master Servicer, an Affiliate of such Master
Servicer, the Special Servicer or an Affiliate of the Special Servicer, or an
employee of either of them may act as broker in connection with the sale of any
REO Property and may retain from the proceeds of such sale a brokerage
commission that does not exceed the commission that would have been earned by an
independent broker pursuant to a brokerage agreement entered into at arm's
length.
In the absence of any such offer, the Special Servicer shall accept
the highest offer received from any Person that is determined by the
Special Servicer to be a fair price for such REO Property, if the highest
bidder is a Person other than an Interested Person, or if such price is
determined to be such a price by the Trustee, if the highest bidder is an
Interested Person. Notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates
may make an offer for or purchase any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the
Special Servicer determines, in accordance with the Servicing Standards,
that rejection of such offer would be in the best interests of the
Certificateholders. In addition, the Special Servicer may accept a lower
offer if it determines, in accordance with the Servicing Standards, that
acceptance of such offer would be in the best interests of the
Certificateholders (for example, if the prospective buyer making the lower
offer is more likely to perform its obligations, or the terms offered by
the prospective buyer making the lower offer are more favorable).
In determining whether any offer received from an Interested Person
represents a fair price for any REO Property, the Trustee shall obtain and
may conclusively rely on the opinion of an Independent appraiser or other
Independent expert in real estate matters retained by the Trustee at the
expense of the Trust Fund. In determining whether any offer constitutes a
fair price for any REO Property, the Special Servicer or the Trustee (or,
if applicable, such appraiser) shall take into account, and any appraiser
or other expert in real estate matters shall be instructed to take into
account, as applicable, among other factors, the physical condition of
such REO Property, the state of the local economy and the Trust Fund's
obligation to comply with REMIC Provisions.
(ii) Subject to the Servicing Standards, the Special Servicer shall
act on behalf of the Trust Fund and the Companion Holders in negotiating
and taking any other action necessary or appropriate in connection with
the sale of any REO Property, including the collection of all amounts
payable in connection therewith. A sale of any REO Property shall be
without recourse to, or representation or warranty by, the Trustee, the
Co-Trustee, the Depositor, the applicable Master Servicer, the Special
Servicer or the Trust Fund (except that any contract of sale and
assignment and conveyance documents may contain customary warranties of
title, so long as the only recourse for breach thereof is to the Trust
Fund) and, if consummated in accordance with the terms of this Agreement,
none of the applicable Master Servicer, the Special Servicer, the
Depositor, the Co-Trustee nor the Trustee shall have any liability to the
Trust Fund or any Certificateholder or Companion Holder with respect to
the purchase price therefor accepted by the Special Servicer or the
Trustee.
(c) Any sale of a Defaulted Mortgage Loan or any REO Property shall
be for cash only (unless changes in the REMIC Provisions or authoritative
interpretations thereof made or issued subsequent to the Startup Day allow a
sale for other consideration).
(d) Notwithstanding anything in this Section 3.18 to the contrary,
with respect to each AB Whole Loan, any right of the related Companion Holder
pursuant to the terms of the related Intercreditor Agreement to purchase the
related AB Mortgage Loan or related REO Property shall be given priority over
any provision described in this Section 3.18, subject, to the extent applicable,
to any rights of a mezzanine lender as set forth in Section 3.18(e). If the
related Mortgage Loan or REO Property is purchased by a related Companion
Holder, repurchased by the applicable Mortgage Loan Seller or otherwise ceases
to be subject to this Agreement, the related Companion Loan will no longer be
subject to this Agreement. None of the Trustee, the Co-Trustee, the Master
Servicers nor the Trust Fund shall acquire a Companion Loan.
(e) Notwithstanding anything in this Section 3.18 to the contrary,
any mezzanine lender will have the right to purchase the related Mortgage Loan
and cure defaults relating thereto as and to the extent set forth in the related
mezzanine intercreditor agreement.
(f) In the event any Master Servicer or the Special Servicer has the
right to purchase any Companion Loan on behalf of the Trust pursuant to the
related Intercreditor Agreement, neither such Master Servicer nor the Special
Servicer shall exercise such right.
(g) Notwithstanding anything herein to the contrary, the holder of a
Companion Loan may be entitled to purchase the related Serviced Mortgage Loan in
accordance with the terms and conditions set forth in the related Intercreditor
Agreement.
(h) With respect to either the Skyline Portfolio Mortgage Loan or
the Solana Mortgage Loan, if the Skyline Portfolio A1 Pari Passu Companion Loan
or the Solana Pari Passu Companion Loan, as applicable, is subject to a fair
value purchase option under the BACM 2007-1 Pooling Agreement, the BACM 2007-1
Special Servicer will be required to determine the purchase price for the
Skyline Portfolio Mortgage Loan or the Solana Mortgage Loan, as applicable. Each
Option Holder shall have an option to purchase the Skyline Portfolio Mortgage
Loan or the Solana Mortgage Loan, as applicable, at the purchase price
determined by the BACM 2007-1 Special Servicer under the BACM 2007-1 Pooling
Agreement.
With respect to each Serviced Whole Loan with a related Serviced
Securitized Companion Loan, upon the related Mortgage Loan becoming a Defaulted
Mortgage Loan, the Trustee shall promptly notify, in writing, each related
Companion Holder (such notice shall include the option price for such Serviced
Securitized Companion Loan as determined by the Special Servicer based on the
same methodology for determining the fair value of the related Mortgage Loan) or
if such Serviced Securitized Companion Loan has been securitized, the applicable
trustee under the Other Pooling and Servicing Agreement (who shall be instructed
to promptly notify, in writing, the "controlling class representative" (as
defined in the related Other Pooling and Servicing Agreement) of that
securitization or an analogous party). Upon receipt of such notice, the related
"controlling class representative" (as defined in the related Other Pooling and
Servicing Agreement) or analogous party shall have the right, at its option, to
purchase its respective Serviced Securitized Companion Loan from the trust
established pursuant to the related Other Pooling and Servicing Agreement for a
price determined by the Special Servicer in accordance with Section 3.18 hereof,
with respect to such Serviced Securitized Companion Loan. Such Purchase Option
shall otherwise be on the same terms as the Purchase Option provided to the
Controlling Class Option Holder in Section 3.18(a) mutatis mutandis.
Section 3.19 Additional Obligations of the Applicable Master
Servicer and Special Servicer. (a) The applicable Master Servicer shall deliver
all Compensating Interest Payments on the Mortgage Loans that it is responsible
for servicing hereunder to the Trustee for deposit in the Distribution Account
on each P&I Advance Date, without any right of reimbursement therefor.
(b) The applicable Master Servicer shall provide to each Companion
Holder any reports or notices expressly required to be delivered to such
Companion Holder pursuant to the related Intercreditor Agreement.
(c) Upon the determination that a previously made Advance is a
Nonrecoverable Advance, to the extent that the reimbursement thereof would
exceed the full amount of the principal portion of general collections on the
Mortgage Loans deposited in the applicable Certificate Account and available for
distribution on the next Distribution Date, the applicable Master Servicer or
the Co-Trustee, each at its own option and in its sole discretion, as
applicable, instead of obtaining reimbursement for the remaining amount of such
Nonrecoverable Advance pursuant to Section 3.05(a)(v) immediately, as an
accommodation may elect to refrain from obtaining such reimbursement for such
portion of the Nonrecoverable Advance during the one month collection period
ending on the then current Determination Date, for successive one-month periods
for a total period not to exceed 12 months and any election to so defer or not
to defer shall be deemed to be in accordance with the Servicing Standards. If
any Master Servicer (or the Co-Trustee) makes such an election at its sole
option and in its sole discretion to defer reimbursement with respect to all or
a portion of a Nonrecoverable Advance (together with interest thereon), then
such Nonrecoverable Advance (together with interest thereon) or portion thereof
shall continue to be fully reimbursable in the subsequent collection period
(subject, again, to the same sole option to defer; it is acknowledged that, in
such a subsequent period, such Nonrecoverable Advance shall again be payable
first from principal collections as described above prior to payment from other
collections). In connection with a potential election by any Master Servicer (or
the Co-Trustee) to refrain from the reimbursement of a particular Nonrecoverable
Advance or portion thereof during the one month collection period ending on the
related Determination Date for any Distribution Date, such Master Servicer (or
the Co-Trustee) shall further be authorized to wait for principal collections on
the Mortgage Loans to be received before making its determination of whether to
refrain from the reimbursement of a particular Nonrecoverable Advance or portion
thereof) until the end of such collection period; provided, however, if, at any
time the applicable Master Servicer or the Co-Trustee, as the case may be,
elects not to refrain from obtaining such reimbursement or otherwise determines
that the reimbursement of a Nonrecoverable Advance during a one-month collection
period will exceed the full amount of the principal portion of general
collections deposited in the Collection Accounts for such Distribution Date,
then the applicable Master Servicer or the Co-Trustee, as applicable, shall use
its reasonable efforts to give Xxxxx'x, S&P and Fitch 15 days' notice of such
determination, unless (1) the applicable Master Servicer or the Co-Trustee, as
applicable, determines in its sole discretion that waiting 15 days after such a
notice could jeopardize such Master Servicer's or the Co-Trustee's ability, as
applicable, to recover such Nonrecoverable Advances, (2) changed circumstances
or new or different information becomes known to such Master Servicer or the
Co-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 Master Servicer has not timely received from the Trustee information
requested by such Master Servicer to consider in determining whether to defer
reimbursement of a Nonrecoverable Advance; provided that, if clause (1), (2) or
(3) apply, the applicable Master Servicer or the Co-Trustee, as applicable,
shall give Xxxxx'x and Fitch notice of an anticipated reimbursement to it of
Nonrecoverable Advances from amounts in the Certificate Account or Distribution
Account, as applicable, allocable to interest on the Mortgage Loans as soon as
reasonably practicable in such circumstances. The applicable Master Servicer or
the Co-Trustee, as applicable, shall have no liability for any loss, liability
or expense resulting from any notice provided to Xxxxx'x and Fitch contemplated
by the immediately preceding sentence. Nothing herein shall give any Master
Servicer or the Co-Trustee the right to defer reimbursement of a Nonrecoverable
Advance to the extent of any principal collections then available in the
Certificate Accounts pursuant to Section 3.05(a)(v).
The foregoing shall not, however, be construed to limit any
liability that may otherwise be imposed on such Person for any failure by such
Person to comply with the conditions to making such an election under this
section or to comply with the terms of this section and the other provisions of
this Agreement that apply once such an election, if any, has been made;
provided, however, that the fact that a decision to recover such Nonrecoverable
Advances over time, or not to do so, benefits some classes of Certificateholders
to the detriment of other classes shall not, with respect to any Master Servicer
or the Special Servicer, as applicable, constitute a violation of the Servicing
Standards and/or with respect to the Co-Trustee, constitute a violation of any
fiduciary duty to Certificateholders or any contractual obligation hereunder. If
any Master Servicer or the Co-Trustee, as applicable, determines, in its sole
discretion, that its ability to fully recover the Nonrecoverable Advances has
been compromised, then such Master Servicer or the Co-Trustee, as applicable,
shall be entitled to immediate reimbursement of Nonrecoverable Advances with
interest thereon at the Reimbursement Rate from all amounts in its Certificate
Account or such other Master Servicer's Certificate Account (if amounts in such
Master Servicer's Certificate Account are not sufficient for such reimbursement)
for such Distribution Date (deemed first from principal and then interest). Any
such election by any such party to refrain from reimbursing itself or obtaining
reimbursement for any Nonrecoverable Advance or portion thereof with respect to
any one or more collection periods shall not limit the accrual of interest at
the Reimbursement Rate on such Nonrecoverable Advance for the period prior to
the actual reimbursement of such Nonrecoverable Advance. The applicable Master
Servicer's or the Co-Trustee's, as the case may be, decision to defer
reimbursement of such Nonrecoverable Advances as set forth above is an
accommodation to the Certificateholders and shall not be construed as an
obligation on the part of such Master Servicer or the Co-Trustee, as applicable,
or a right of the Certificateholders. Nothing herein shall be deemed to create
in the Certificateholders a right to prior payment of distributions over the
applicable Master Servicer's or the Co-Trustee's, as applicable, right to
reimbursement for Advances (deferred or otherwise) and accrued interest thereon.
In all events, the decision to defer reimbursement or to seek immediate
reimbursement of Nonrecoverable Advances shall be deemed to be in accordance
with the Servicing Standards and none of the Master Servicers, the Co-Trustee or
the other parties to this Agreement shall have any liability to one another or
to any of the Certificateholders or any of the Companion Holders for any such
election that such party makes as contemplated by this section or for any
losses, damages or other adverse economic or other effects that may arise from
such an election.
Section 3.20 Modifications, Waivers, Amendments and Consents. (a)
Except as set forth in Section 3.08(a), Section 3.08(b), Section 3.08(f), this
Section 3.20(a), Section 3.20(d), Section 3.20(j) and Section 6.07 but subject
to any other conditions set forth thereunder, and, with respect to any Serviced
Whole Loan, subject to the rights of the related Companion Holder to advise the
applicable Master Servicer with respect to, or consent to, a modification,
waiver or amendment pursuant to the terms of the related Intercreditor
Agreement, the Master Servicers shall not modify, waive or amend a Mortgage Loan
and/or a Companion Loan without the prior written consent of the Special
Servicer; provided that, the applicable Master Servicer shall forward to the
Special Servicer requests to extend the maturity date of a Mortgage Loan and/or
Companion Loan that is not a Specially Serviced Mortgage Loan, and the Special
Servicer may approve such request, provided, further, that except as provided in
the following sentence, subject to Section 6.07, no such extension entered into
pursuant to this Section 3.20(a) shall extend the Maturity Date beyond the
earlier of (i) two years prior to the Rated Final Distribution Date and (ii) in
the case of a Mortgage Loan secured by a leasehold estate and not also the
related fee interest, the date twenty years or, to the extent consistent with
the Servicing Standards giving due consideration to the remaining term of the
ground lease, ten years, prior to the expiration of such leasehold estate. If
such extension would extend the Maturity Date of a Mortgage Loan and/or
Companion Loan for more than twelve months from and after the original Maturity
Date of such Mortgage Loan and/or Companion Loan and such Mortgage Loan and/or
Companion Loan is not in default or default with respect thereto is not
reasonably foreseeable, the applicable Master Servicer must provide the Trustee,
the Special Servicer and the Directing Certificateholders with an Opinion of
Counsel (at the expense of the related Mortgagor to the extent permitted under
the Mortgage Loan documents and, if not required to be paid by the Mortgagor,
from the Certificate Account as an expense of the Trust) that such extension
would not constitute a "significant modification" of the Mortgage Loan and/or
Companion Loan within the meaning of Treasury Regulations Section 1.860G-2(b).
Notwithstanding the foregoing, the applicable Master Servicer, with respect to
Non-Specially Serviced Mortgage Loans that it is responsible for servicing,
without the consent of the Special Servicer, may modify or amend the terms of
any Mortgage Loan and/or Companion Loan in order to (i) cure any ambiguity or
mistake therein or (ii) correct or supplement any provisions therein which may
be inconsistent with any other provisions therein or correct any error, provided
that, if the Mortgage Loan and/or Companion Loan is not in default or default
with respect thereto is not reasonably foreseeable, such modification or
amendment would not be a "significant modification" of the Mortgage Loan and/or
Companion Loan within the meaning of Treasury Regulations Section 1.860G-2(b).
Subject to Section 6.07 herein, applicable law and the Mortgage Loan
or Companion Loan documents, neither the applicable Master Servicer nor the
Special Servicer shall permit the substitution of any Mortgaged Property (or any
portion thereof) for one or more other parcels of real property at any time the
Mortgage Loan and/or Companion Loan is not in default pursuant to the terms of
the related Mortgage Loan and/or Companion Loan documents or default with
respect thereto is not reasonably foreseeable unless (i) such Master Servicer or
the Special Servicer, as applicable, obtains from each Rating Agency (and
delivers to the Directing Certificateholder) a written confirmation that such
substitution will not cause a downgrade, qualification or withdrawal of the then
current rating assigned to any of the Certificates or if applicable, any class
of Companion Loan Securities and (ii) either (a) such substitution is at the
unilateral option of the Mortgagor or otherwise occurs automatically pursuant to
the terms of the Mortgage Loan in effect on the Startup Day, within the meaning
of Treasury Regulations Section 1.1001-3, or (b) it has received an Opinion of
Counsel to the effect that such substitution would not be a "significant
modification" of the Mortgage Loan and/or Companion Loan within the meaning of
Treasury Regulations Section 1.860G-2(b).
(b) If the Special Servicer determines that a modification, waiver
or amendment (including, without limitation, the forgiveness or deferral of
interest or principal or the substitution of collateral pursuant to the terms of
the Mortgage Loan and/or Companion Loan or otherwise, the release of collateral
or the pledge of additional collateral) of the terms of a Specially Serviced
Mortgage Loan with respect to which a payment default or other material default
has occurred or a payment default or other material default is, in the Special
Servicer's judgment, reasonably foreseeable (as evidenced by an Officer's
Certificate of the Special Servicer), is reasonably likely to produce a greater
recovery on a net present value basis (the relevant discounting to be performed
at the related Mortgage Rate) to the Trust and, if applicable, the Companion
Holders as the holders of such Companion Loans than liquidation of such
Specially Serviced Mortgage Loan, then the Special Servicer may agree to a
modification, waiver or amendment of such Specially Serviced Mortgage Loan,
subject to (x) the provisions of this Section 3.20(b) and Section 3.20(c), (y)
the approval of the Directing Certificateholder as provided in Sections 3.21 and
6.07 and (z) with respect to any Serviced Whole Loan, the rights of the related
Companion Holder to advise the Special Servicer with respect to, or consent to,
such modification, waiver or amendment pursuant to the terms of the related
Intercreditor Agreement.
The Special Servicer shall use its reasonable efforts to the extent
possible to cause each Specially Serviced Mortgage Loan to fully amortize prior
to the Rated Final Distribution Date and shall not agree to a modification,
waiver or amendment of any term of any Specially Serviced Mortgage Loan if such
modification, waiver or amendment would extend the maturity date of any such
Specially Serviced Mortgage Loan to a date occurring later than the earlier of
(a) two years prior to the Rated Final Distribution Date and (b) if such
Specially Serviced Mortgage Loan is secured by a leasehold estate and not also
the related fee interest, the date occurring twenty years or, to the extent
consistent with the Servicing Standards giving due consideration to the
remaining term of the ground lease, with the consent of the Directing
Certificateholder, ten years prior to the expiration of such leasehold estate.
(c) Any provision of this Section 3.20 to the contrary
notwithstanding, except when a Mortgage Loan and/or Companion Loan is in default
or default with respect thereto is reasonably foreseeable, no fee described in
this paragraph shall be collected by any Master Servicer or Special Servicer
from a Mortgagor (or on behalf of the Mortgagor) in conjunction with any consent
or any modification, waiver or amendment of a Mortgage Loan or Companion Loan,
as applicable (unless the amount thereof is specified in the related Mortgage
Note) if the collection of such fee would cause such consent, modification,
waiver or amendment to be a "significant modification" of the Mortgage Note
within the meaning of Treasury Regulations Section 1.860G-2(b).
(d) To the extent consistent with this Agreement, the applicable
Master Servicer or the Special Servicer may agree to any waiver, modification or
amendment of a Mortgage Loan or Companion Loan that is not in default or as to
which default is not reasonably foreseeable only if it provides the Trustee with
an Opinion of Counsel (at the expense of the related Mortgagor or such other
Person requesting such modification or, if such expense cannot be collected from
the related Mortgagor or such other Person, to be paid by the applicable Master
Servicer or Special Servicer as a Servicing Advance) to the effect that the
contemplated waiver, modification or amendment (i) will not be a "significant
modification" of the Mortgage Loan within the meaning of Treasury Regulations
Section 1.860G-2(b) and (ii) will not cause (x) any of the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC for
purposes of the Code or (y) any of the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC to be subject to any tax under the REMIC Provisions.
Notwithstanding the foregoing, neither the applicable Master Servicer nor the
Special Servicer may waive the payment of any Yield Maintenance Charge or the
requirement that any prepayment of a Mortgage Loan be made on a Due Date, or if
not made on a Due Date, be accompanied by all interest that would be due on the
next Due Date with respect to any Mortgage Loan or Companion Loan that is not a
Specially Serviced Mortgage Loan.
(e) In the event of a modification that creates Mortgage Deferred
Interest, such Mortgage Deferred Interest will be allocated to reduce the
Distributable Certificate Interest of the Class or Classes of Certificates
(other than the Class A-2SFL Certificates and the Class A-JFL Certificates), the
Class A-2SFL Regular Interest or the Class A-JFL Regular Interest pursuant to
Section 4.06.
(f) Subject to Section 3.20(c), the applicable Master Servicer and
the Special Servicer each may, as a condition to its granting any request by a
Mortgagor for consent, modification (including extensions), waiver or indulgence
or any other matter or thing, the granting of which is within such Master
Servicer's or the Special Servicer's, as the case may be, discretion pursuant to
the terms of the instruments evidencing or securing the related Mortgage Loan or
Companion Loan and is permitted by the terms of this Agreement, require that
such Mortgagor pay to such Master Servicer or the Special Servicer, as the case
may be, as additional servicing compensation, a reasonable or customary fee, for
the additional services performed in connection with such request.
(g) All modifications (including extensions), waivers and amendments
of the Mortgage Loans and/or Companion Loans entered into pursuant to this
Section 3.20 shall be in writing, signed by the applicable Master Servicer or
the Special Servicer, as the case may be, and the related Mortgagor (and by any
guarantor of the related Mortgage Loan, if such guarantor's signature is
required by the Special Servicer in accordance with the Servicing Standards).
(h) Each of the Master Servicers with respect to the Non-Specially
Serviced Mortgage Loans it is servicing hereunder and the Special Servicer with
respect to the Specially Serviced Mortgage Loans shall notify the Rating
Agencies, the Trustee, the Directing Certificateholder, the related Companion
Holder, if applicable, and each other in writing of any modification, waiver or
amendment of any term of any Mortgage Loan or Companion Loan and the date
thereof, and shall deliver to the Trustee or the related Custodian with a copy
to the applicable Master Servicer (if such notice is being delivered by the
Special Servicer) for deposit in the related Mortgage File, an original
counterpart of the agreement relating to such modification, waiver or amendment,
promptly (and in any event within 10 Business Days) following the execution
thereof. Following receipt of the applicable Master Servicer's or the Special
Servicer's, as applicable, delivery of the aforesaid modification, waiver or
amendment to the Trustee, the Trustee shall forward a copy thereof to each
Holder of a Class B, Class B-S, Class C, Class C-S, Class D, Class D-S, Class E,
Class E-S, Class F, Class F-S, Class G, Class G-S, Class H, Class H-S, Class J,
Class K, Class L, Class M, Class N, Class P and Class NR Certificate upon
request.
(i) [RESERVED].
(j) Notwithstanding the foregoing, neither the Master Servicers nor
the Special Servicer shall permit the substitution of any Mortgaged Property
pursuant to the defeasance provisions of any Mortgage Loan, any Serviced Whole
Loan or Companion Loan unless such defeasance complies with Treasury Regulations
Section 1.860G-2(a)(8) and the applicable Master Servicer or the Special
Servicer, as applicable, has received (i) a certificate of an Independent
certified public accountant to the effect that such substituted property will
provide cash flows sufficient to meet all payments of interest and principal
(including payments at maturity) on such Mortgage Loan, any Serviced Whole Loan
or Companion Loan in compliance with the requirements of the terms of the
related Mortgage Loan documents and, if applicable, Companion Loan documents,
(ii) one or more Opinions of Counsel (at the expense of the related Mortgagor)
to the effect that the Trustee, on behalf of the Trust Fund, will have a first
priority perfected security interest in such substituted Mortgaged Property;
provided, however, that, to the extent consistent with the related Mortgage Loan
documents and, if applicable, Companion Loan documents, the related Mortgagor
shall pay the cost of any such opinion as a condition to granting such
defeasance, (iii) to the extent consistent with the related Mortgage Loan
documents, the Mortgagor shall establish a single purpose entity to act as a
successor Mortgagor, if so required by the Rating Agencies, (iv) to the extent
permissible under the related Mortgage Loan documents and, if applicable,
Companion Loan documents, such Master Servicer or Special Servicer, as
applicable shall use its reasonable efforts to require the related Mortgagor to
pay all costs of such defeasance, including but not limited to the cost of
maintaining any successor Mortgagor and (v) to the extent permissible under the
Mortgage Loan documents and, if applicable, Companion Loan documents, such
Master Servicer or Special Servicer, as applicable shall obtain, at the expense
of the related Mortgagor, written confirmation from the Rating Agencies that
such defeasance will not cause the downgrade, withdrawal or modification of the
then current ratings of the Certificates (or, insofar as there is then
outstanding any class of Companion Loan Securities then rated by such Rating
Agency, such class of securities); provided, however, that the applicable Master
Servicer or Special Servicer, as applicable shall not be required to obtain the
Xxxxx'x confirmation referenced in clause (v) above with respect to any Mortgage
Loan which has a Stated Principal Balance less than $20,000,000 and represents
less than 5% of the Stated Principal Balance of all the Mortgage Loans, so long
as such Mortgage Loan is not one of the ten largest Mortgage Loans by Stated
Principal Balance. Notwithstanding the foregoing, in the event that requiring
the Mortgagor to pay for the items specified in clauses (ii), (iv) and (v) in
the preceding sentence would be inconsistent with the related Mortgage Loan
documents, such costs shall be paid by the related Mortgage Loan Seller as set
forth in the first paragraph of Section 2.03(b) as a Trust Fund expense.
(k) Notwithstanding anything herein or in the related Mortgage Loan
documents and, if applicable, Companion Loan documents to the contrary, the
applicable Master Servicer or the Special Servicer may permit the substitution
of "government securities," within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, that comply with Treasury Regulations Section
1.860G-2(a)(8) for any Mortgaged Property pursuant to the defeasance provisions
of any Mortgage Loan, Serviced Whole Loan or Companion Loan, as applicable, (or
any portion thereof), in lieu of the defeasance collateral specified in the
related Mortgage Loan, Serviced Whole Loan or Companion Loan documents, as
applicable; provided that the applicable Master Servicer or the Special Servicer
reasonably determines that allowing their use would not cause a default or event
of default to become reasonably foreseeable and the applicable Master Servicer
or the Special Servicer receives an Opinion of Counsel (at the expense of the
Mortgagor to the extent permitted under the Mortgage Loan documents and, if
applicable, Companion Loan documents and, if not so permitted, paid out of the
Certificate Account) to the effect that such use would not be and would not
constitute a "significant modification" of such Mortgage Loan or Companion Loan
pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise
constitute an Adverse REMIC Event with respect to any REMIC and; provided
further that the requirements set forth in Section 3.20(j) (including the
confirmation from each Rating Agency that such defeasance would not cause the
downgrade, withdrawal or qualification of the then current ratings of the
Certificates or any class of related Companion Loan Securities) are satisfied;
and provided further that such securities are backed by the full faith and
credit of the United States government, or the applicable Master Servicer or the
Special Servicer shall obtain a written confirmation of each Rating Agency that
the use of such securities will not result in the downgrade, withdrawal or
qualification of the then current ratings of any Class of Certificates
outstanding (or, insofar as there is then outstanding any class of Companion
Loan Securities that is then rated by such Rating Agency, such class of
securities).
(l) If required under the related Mortgage Loan or Companion Loan
documents or if otherwise consistent with the Servicing Standards, each Master
Servicer shall establish and maintain one or more accounts (the "Defeasance
Accounts"), which shall be Eligible Accounts, into which all payments received
by such Master Servicer from any defeasance collateral substituted for any
Mortgaged Property shall be deposited and retained, and shall administer such
Defeasance Accounts in accordance with the Mortgage Loan or Companion Loan
documents. Notwithstanding the foregoing, in no event shall such Master Servicer
permit such amounts to be maintained in the Defeasance Account for a period in
excess of 90 days, unless such amounts are reinvested by such Master Servicer in
"government securities," within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, that comply with Treasury Regulations Section
1.860G-2(a)(8). To the extent not required or permitted to be placed in a
separate account, such Master Servicer shall deposit all payments received by it
from defeasance collateral substituted for any Mortgaged Property into the
Certificate Account and treat any such payments as payments made on the Mortgage
Loan or Companion Loan in advance of its Due Date in accordance with clause
(a)(i) of the definition of Available Distribution Amount, and not as a
prepayment of the related Mortgage Loan or Companion Loan. Notwithstanding
anything herein to the contrary, in no event shall such Master Servicer permit
such amounts to be maintained in the Certificate Account for a period in excess
of 365 days (or 366 days in the case of a leap year).
(m) Notwithstanding anything to the contrary in this Agreement,
neither the applicable Master Servicer nor the Special Servicer, as applicable,
shall, unless it has received prior written confirmation (the cost of which
shall be paid by the related Mortgagor, if so allowed by the terms of the
related loan documents and otherwise paid out of the Certificate Account) from
the Rating Agencies that such action will not result in a qualification,
downgrade or withdrawal of any of the ratings assigned by such Rating Agency to
the Certificates (or, insofar as there is then outstanding any class of
Companion Loan Securities then rated by such Rating Agency, such class of
securities), grant or accept any consent, approval or direction regarding the
termination of the related property manager or the designation of any
replacement property manager, with respect to any Mortgaged Property that
secures a Mortgage Loan with an unpaid principal balance that is at least equal
to five percent (5%) of the then aggregate principal balance of all Mortgage
Loans or $20,000,000.
Section 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Recordkeeping; Asset Status Report. (a) Upon determining that
a Servicing Transfer Event has occurred with respect to any Mortgage Loan or
Companion Loan, the applicable Master Servicer or the Special Servicer, as the
case may be, shall promptly give notice to the other applicable servicer and the
Directing Certificateholder thereof, and the applicable Master Servicer shall
deliver the related Mortgage File and Servicing File to the Special Servicer and
shall use its reasonable efforts to provide the Special Servicer with all
information, documents and records (including records stored electronically on
computer tapes, magnetic discs and the like) relating to the Mortgage Loan and,
if applicable, the related Companion Loan, either in the applicable Master
Servicer's possession or otherwise available to such Master Servicer without
undue burden or expense, and reasonably requested by the Special Servicer to
enable it to assume its functions hereunder with respect thereto. Each Master
Servicer shall use its reasonable efforts to comply with the preceding sentence
within 5 Business Days of the occurrence of each related Servicing Transfer
Event and in any event shall continue to act as Master Servicer and
administrator of such Mortgage Loan and, if applicable, the related Companion
Loan(s) until the Special Servicer has commenced the servicing of such Mortgage
Loan and, if applicable, the related Companion Loan. Each Master Servicer shall
deliver to the Trustee, the Co-Trustee and the Directing Certificateholder a
copy of the notice of such Servicing Transfer Event provided by such Master
Servicer to the Special Servicer, or by the Special Servicer to such Master
Servicer, pursuant to this Section. The Trustee shall deliver to each
Controlling Class Certificateholder a copy of the notice of such Servicing
Transfer Event provided by the applicable Master Servicer pursuant to this
Section.
Upon determining that a Specially Serviced Mortgage Loan or
Companion Loan (other than an REO Loan) has become current and has remained
current for three consecutive Monthly Payments (provided that (i) no additional
Servicing Transfer Event is foreseeable in the reasonable judgment of the
Special Servicer, and (ii) for such purposes taking into account any
modification or amendment of such Mortgage Loan and, if applicable, the related
Companion Loan(s)), and that no other Servicing Transfer Event is continuing
with respect thereto, the Special Servicer shall immediately give notice thereof
to the applicable Master Servicer and the Directing Certificateholder and shall
return the related Mortgage File and Servicing File to the applicable Master
Servicer (or copies thereof if copies only were delivered to the Special
Servicer) and upon giving such notice, and returning such Mortgage File and
Servicing File to the applicable Master Servicer, the Special Servicer's
obligation to service such Corrected Mortgage Loan shall terminate and the
obligations of the Master Servicer to service and administer such Mortgage Loan
and, if applicable, the Companion Loan, shall recommence.
(b) In servicing any Specially Serviced Mortgage Loans and Companion
Loans, the Special Servicer will provide to the Trustee originals of documents
included within the definition of "Mortgage File" for inclusion in the related
Mortgage File to the extent within its possession (with a copy of each such
original to the applicable Master Servicer), and provide the applicable Master
Servicer with copies of any additional related Mortgage Loan or Companion Loan
information including correspondence with the related Mortgagor.
(c) Notwithstanding the provisions of Section 3.12(d), each Master
Servicer shall maintain ongoing payment records with respect to each of the
Specially Serviced Mortgage Loans and Companion Loans and REO Properties (other
than with respect to the Non-Serviced Mortgage Loans) and shall provide the
Special Servicer with any information in its possession with respect to such
records to enable the Special Servicer to perform its duties under this
Agreement, provided that this statement shall not be construed to require any
Master Servicer to produce any additional reports.
(d) No later than 60 days after a Servicing Transfer Event for a
Mortgage Loan (other than the Non-Serviced Mortgage Loans) and, if applicable,
the Companion Loan, the Special Servicer shall deliver to the applicable Master
Servicer, each Rating Agency, the Trustee, the Co-Trustee, each related
Companion Holder and the Directing Certificateholder, a report (the "Asset
Status Report") with respect to such Mortgage Loan or Companion Loan and the
related Mortgaged Property; provided, however, the Special Servicer shall not be
required to deliver an Asset Status Report to the Directing Certificateholder if
they are the same entity. Such Asset Status Report shall set forth the following
information to the extent reasonably determinable based on the information that
was delivered to the Special Servicer in connection with the transfer of
servicing pursuant to the Servicing Transfer Event:
(i) summary of the status of such Specially Serviced Mortgage Loan
and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standards, that are applicable to the exercise of remedies as aforesaid
and to the enforcement of any related guaranties or other collateral for
the related Mortgage Loan and whether outside legal counsel has been
retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Mortgage Loan might be returned to performing status and returned
to the applicable Master Servicer for regular servicing or otherwise
realized upon;
(v) a copy of the last obtained Appraisal of the Mortgaged Property;
and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standards.
If within ten (10) Business Days of receiving an Asset Status
Report, the Directing Certificateholder, does not disapprove such Asset Status
Report in writing, the Special Servicer shall implement the recommended action
as outlined in such Asset Status Report; provided, however, that the Special
Servicer may not take any action that is contrary to applicable law, the
Servicing Standards or the terms of the applicable Mortgage Loan documents. If
the Directing Certificateholder disapproves such Asset Status Report within ten
(10) Business Days of receipt, the Special Servicer will revise such Asset
Status Report and deliver to the Directing Certificateholder, the Rating
Agencies, the related Companion Holder, if applicable, the Trustee, the
Co-Trustee and the applicable Master Servicer a new Asset Status Report as soon
as practicable, but in no event later than thirty (30) days after such
disapproval. The Special Servicer shall revise such Asset Status Report as
described above in this Section 3.21(d) until the Directing Certificateholder
shall fail to disapprove such revised Asset Status Report in writing within ten
(10) Business Days of receiving such revised Asset Status Report or until the
Special Servicer makes one of the determinations described below.
Notwithstanding the foregoing, in the event the Directing Certificateholder and
the Special Servicer have been unable to agree upon an Asset Status Report with
respect to a Specially Serviced Mortgage Loan within ninety (90) days, of the
Directing Certificateholder's receipt of the initial Asset Status Report, the
Special Servicer, subject to the rights of the related Companion Holder pursuant
to the related Intercreditor Agreement, if applicable, shall implement the
actions described in the most recent Asset Status Report submitted to the
Directing Certificateholder by the Special Servicer. The Special Servicer may,
from time to time, modify any Asset Status Report it has previously delivered
and implement such report, provided such report shall have been prepared,
reviewed and not rejected pursuant to the terms of this Section. Notwithstanding
the foregoing, the Special Servicer (i) may, following the occurrence of an
extraordinary event with respect to the related Mortgaged Property, take any
action set forth in such Asset Status Report before the expiration of a ten (10)
Business Day period if the Special Servicer has reasonably determined that
failure to take such action would materially and adversely affect the interests
of the Certificateholders or, if a Serviced Whole Loan is involved, the
Companion Holder, and it has made a reasonable effort to contact the Directing
Certificateholder and (ii) in any case, shall determine whether such affirmative
disapproval is not in the best interest of all the Certificateholders pursuant
to the Servicing Standards. Each final Asset Status Report shall be delivered to
the applicable Master Servicer, the Trustee and Co-Trustee (upon request), the
related Companion Holder, if applicable, and each Rating Agency.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standards and the related Asset Status Report. The
Special Servicer shall not take any action inconsistent with the related Asset
Status Report, unless such action would be required in order to act in
accordance with the Servicing Standards.
No direction or disapproval of the Directing Certificateholder shall
(a) require or cause the Special Servicer to violate the terms of a Specially
Serviced Mortgage Loan, applicable law or any provision of this Agreement,
including the Special Servicer's obligation to act in accordance with the
Servicing Standards and to maintain the REMIC status of any of the Lower-Tier
REMIC, the Middle-Tier REMIC and the Upper-Tier REMIC, or (b) result in the
imposition of a "prohibited transaction" or "prohibited contribution" tax under
the REMIC Provisions, or (c) expose the Master Servicer, the Special Servicer,
the Depositor, the Mortgage Loan Sellers, the Trust Fund, the Trustee, the
Co-Trustee or their respective officers, directors, employees or agents to any
claim, suit or liability or (d) materially expand the scope of the Special
Servicer's, Trustee's, Co-Trustee's or the Master Servicer's responsibilities
under this Agreement.
(e) Upon receiving notice of (i) the occurrence of the events
described in clause (v) of the definition of Servicing Transfer Event (without
regard to the 60 day period set forth therein), or (ii) the request by a
Mortgagor for the amendment or modification of a Mortgage Loan or Companion Loan
which is not a Specially Serviced Mortgage Loan for which the Special Servicer
is responsible for such amendment or modification pursuant to Section 3.08 and
Section 3.20, the applicable Master Servicer shall with reasonable promptness
give notice thereof, and shall use its reasonable efforts to provide the Special
Servicer with all information relating to the Mortgage Loan or Companion Loan
and reasonably requested by the Special Servicer to enable it to negotiate with
the related Mortgagor and prepare for any such proceedings. Each Master Servicer
shall use its reasonable efforts to comply with the preceding sentence within 5
Business Days of the occurrence of each such event.
Section 3.22 Sub-Servicing Agreements. (a) Each Master Servicer may
enter into Sub-Servicing Agreements to provide for the performance by third
parties of any or all of its respective obligations hereunder; provided that the
Sub-Servicing Agreement as amended or modified: (i) is consistent with this
Agreement in all material respects and requires the Sub-Servicer to comply with
all of the applicable conditions of this Agreement; (ii) provides that if such
Master Servicer shall for any reason no longer act in such capacity hereunder
(including, without limitation, by reason of an Event of Default), the
Co-Trustee or its designee shall thereupon assume all of the rights and, except
to the extent they arose prior to the date of assumption, obligations of such
Master Servicer under such agreement, or, alternatively, may act in accordance
with Section 7.02 hereof under the circumstances described therein (subject to
Section 3.22(g) hereof); (iii) provides that the Trustee and the Co-Trustee for
the benefit of the Certificateholders, the related Companion Holder (if
applicable) and the Trustee (as holder of the Class A-2SFL Regular Interest, the
Class A-JFL Regular Interest, the Uncertificated Middle-Tier Interests and the
Uncertificated Lower-Tier Interests) and the Co-Trustee shall be a third party
beneficiary under such Sub-Servicing Agreement, but that (except to the extent
the Co-Trustee or its designee assumes the obligations of the applicable Master
Servicer thereunder as contemplated by the immediately preceding clause (ii))
none of the Trust Fund, the Trustee, the Co-Trustee, the Special Servicer, any
successor Master Servicer or any Certificateholder (or the related Companion
Holder, if applicable) shall have any duties under such Sub-Servicing Agreement
or any liabilities arising therefrom; (iv) permits any purchaser of a Mortgage
Loan pursuant to this Agreement to terminate such Sub-Servicing Agreement with
respect to such purchased Mortgage Loan at its option and without penalty;
provided, however, that the Initial Sub-Servicing Agreements may only be
terminated by the Co-Trustee or its designees as contemplated by Section 3.22(g)
hereof and in such additional manner as is provided in such Sub-Servicing
Agreement; (v) does not permit the Sub-Servicer any direct rights of
indemnification that may be satisfied out of assets of the Trust Fund and (vi)
does not permit the Sub-Servicer to modify any Mortgage Loan unless and to the
extent the applicable Master Servicer is permitted hereunder to modify such
Mortgage Loan. Any successor Master Servicer hereunder shall, upon becoming
successor Master Servicer, be assigned and shall assume any Sub-Servicing
Agreements from the predecessor master servicer (subject to Section 3.22(g)
hereof). In addition, each Sub-Servicing Agreement entered into by any Master
Servicer may but need not provide that the obligations of the Sub-Servicer
thereunder shall terminate with respect to any Mortgage Loan serviced thereunder
at the time such Mortgage Loan becomes a Specially Serviced Mortgage Loan;
provided, however, that the Sub-Servicing Agreement may provide (if the
Sub-Servicing Agreement provides for Advances by the Sub-Servicer, although it
need not so provide) that the Sub-Servicer will continue to make all Advances
and calculations and prepare all reports required under the Sub-Servicing
Agreement with respect to Specially Serviced Mortgage Loans and continue to
collect its Primary Servicing Fees as if no Servicing Transfer Event had
occurred and with respect to REO Properties (and the related REO Loans) as if no
REO Acquisition had occurred and to render such incidental services with respect
to such Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for in such Sub-Servicing Agreement. Each Master Servicer shall deliver
to the Trustee copies of all Sub-Servicing Agreements, and any amendments
thereto and modifications thereof, entered into by it promptly upon its
execution and delivery of such documents. References in this Agreement to
actions taken or to be taken by any Master Servicer include actions taken or to
be taken by a Sub-Servicer on behalf of such Master Servicer; and, in connection
therewith, all amounts advanced by any Sub-Servicer (if the Sub-Servicing
Agreement provides for Advances by the Sub-Servicer, although it need not so
provide) to satisfy the obligations of such Master Servicer hereunder to make
Advances shall be deemed to have been advanced by such Master Servicer out of
its own funds and, accordingly, in such event, such Advances shall be
recoverable by such Sub-Servicer in the same manner and out of the same funds as
if such Sub-Servicer were the applicable Master Servicer, and, for so long as
they are outstanding, such Advances shall accrue interest in accordance with
Section 3.03(d), such interest to be allocable between the applicable Master
Servicer and such Sub-Servicer as may be provided (if at all) pursuant to the
terms of the Sub-Servicing Agreement. For purposes of this Agreement, each
Master Servicer shall be deemed to have received any payment when a Sub-Servicer
retained by it receives such payment. Each Master Servicer shall notify the
Special Servicer, the Trustee, the Co-Trustee and the Depositor in writing
promptly of the appointment by it of any Sub-Servicer, except that such Master
Servicer need not provide such notice as to the Initial Sub-Servicing
Agreements.
(b) Each Sub-Servicer shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law to the extent
necessary to ensure the enforceability of the related Mortgage Loans or the
compliance with its obligations under the Sub-Servicing Agreement and the
applicable Master Servicer's obligations under this Agreement.
(c) As part of its servicing activities hereunder, each Master
Servicer for the benefit of the Trustee and the Certificateholders, shall (at no
expense to the Trustee, the Co-Trustee, the Certificateholders or the Trust
Fund) monitor the performance and enforce the obligations of each of its
Sub-Servicers under the related Sub-Servicing Agreement. Subject to Sections
11.01 and 11.02, such enforcement, including, without limitation, the legal
prosecution of claims, termination of Sub-Servicing Agreements in accordance
with their respective terms and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as is in
accordance with the Servicing Standards. Each Master Servicer shall have the
right to remove a Sub-Servicer retained by it in accordance with the terms of
the related Sub-Servicing Agreement.
(d) In the event the Co-Trustee or its designee becomes successor
Master Servicer and assumes the rights and obligations of any Master Servicer
under any Sub-Servicing Agreement, such Master Servicer, at its expense, shall
deliver to the assuming party all documents and records relating to such
Sub-Servicing Agreement and the Mortgage Loans and, if applicable, Companion
Loans then being serviced thereunder and an accounting of amounts collected and
held on behalf of it thereunder, and otherwise use reasonable efforts to effect
the orderly and efficient transfer of the Sub-Servicing Agreement to the
assuming party.
(e) Notwithstanding the provisions of any Sub-Servicing Agreement
and this Section 3.22 (except to the extent provided in Article XI with respect
to the obligations of any Sub-Servicer that is an Initial Sub-Servicer) the
Master Servicer shall remain obligated and responsible to the Trustee, the
Co-Trustee, the Special Servicer, holders of the Companion Loans serviced
hereunder and the Certificateholders for the performance of such Master
Servicer's obligations and duties under this Agreement in accordance with the
provisions hereof to the same extent and under the same terms and conditions as
if it alone were servicing and administering the Mortgage Loans for which it is
responsible, and the Master Servicer shall pay the fees of any Sub-Servicer
under any Sub-Servicing Agreement as and when due from its own funds. In no
event shall the Trust Fund bear any termination fee required to be paid to any
Sub-Servicer as a result of such Sub-Servicer's termination under any
Sub-Servicing Agreement.
(f) The Trustee shall furnish to any Sub-Servicer any powers of
attorney and other documents necessary or appropriate to enable such
Sub-Servicer to carry out its servicing and administrative duties under any
Sub-Servicing Agreement; provided, however, that the Trustee shall not be held
liable for any negligence, and shall be indemnified by the Sub-Servicer, with
respect to, or misuse of, any such power of attorney by a Sub-Servicer, and
provided further that the use of such power of attorney by a Sub-Servicer is
subject to the last sentence of Section 3.01(b).
(g) Each Sub-Servicing Agreement shall provide that, in the event
the Co-Trustee or any other Person becomes successor Master Servicer, the
Co-Trustee or such successor Master Servicer shall have the right to terminate
such Sub-Servicing Agreement with or without cause and without a fee.
Notwithstanding the foregoing or any other contrary provision in this Agreement,
the Co-Trustee and any successor Master Servicer shall assume each Initial
Sub-Servicing Agreement and (i) the Initial Sub-Servicer's rights and
obligations under the Initial Sub-Servicing Agreement shall expressly survive a
termination of the Master Servicer's servicing rights under this Agreement;
provided that the Initial Sub-Servicing Agreement has not been terminated in
accordance with its provisions; (ii) any successor Master Servicer, including,
without limitation, the Co-Trustee (if it assumes the servicing obligations of
the Master Servicer) shall be deemed to automatically assume and agree to the
then-current Initial Sub-Servicing Agreement without further action upon
becoming the successor Master Servicer and (iii) this Agreement may not be
modified in any manner which would increase the obligations or limit the rights
of the Initial Sub-Servicer hereunder and/or under the Initial Sub-Servicing
Agreement, without the prior written consent of the Initial Sub-Servicer (which
consent shall not be unreasonably withheld).
(h) With respect to Mortgage Loans subject to a Sub-Servicing
Agreement, the Special Servicer shall, to the extent required, remit amounts,
deliver reports and information, and afford access to facilities and information
to the related Sub-Servicer that would be required to be remitted, delivered or
afforded, as the case may be, to the applicable Master Servicer pursuant to the
terms hereof (and within the same period of time required herein), within a
sufficient period of time to allow the Sub-Servicer to fulfill its obligations
under such Sub-Servicing Agreement and in no event later than 1 Business Day
prior to the applicable Determination Date (or such other date as specified
herein).
(i) Notwithstanding any other provision of this Agreement, the
Special Servicer shall not enter into any Sub-Servicing Agreement which provides
for the performance by third parties of any or all of its obligations herein,
unless (i) the Special Servicer receives the consent of the Directing
Certificateholder and (ii) the Special Servicer receives the written
confirmation of Fitch that such agreement will not cause the downgrade,
withdrawal or qualification of any of the then current ratings assigned to any
Class of Certificates.
Section 3.23 Representations, Warranties and Covenants of the Master
Servicers. (a) Each Master Servicer hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders, each
Companion Holder and to the other Master Servicer, the Co-Trustee, the Depositor
and the Special Servicer, as of the Closing Date, that:
(i) Master Servicer is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware (in
the case of Master Servicer No. 1) or a national banking association, duly
organized, validly existing and in good standing under the laws of the
United States (in the case of Master Servicer No. 2), and such Master
Servicer is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by such Master
Servicer, and the performance and compliance with the terms of this
Agreement by such Master Servicer, does not (A) violate the applicable
Master Servicer's organizational documents, (B) constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other material instrument to which it is a party or which is applicable to
it or any of its assets or (C) violate any law, rule, regulation, order,
judgment or decree to which such Master Servicer or its property is
subject, which, in the case of either (B) or (C), is likely to materially
and adversely affect the ability of the Master Servicer to perform its
obligations under this Agreement;
(iii) Such Master Servicer has the full power and authority to enter
into and consummate all transactions to be performed by it contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the applicable Master Servicer, enforceable against
such 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) Such Master Servicer is not in default with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, local or governmental agency, which default, in such
Master Servicer's reasonable judgment is likely to materially and
adversely affect its ability to perform its duties and obligations
hereunder;
(vi) No litigation is pending or, to the best of such Master
Servicer's knowledge, threatened against such Master Servicer which would
prohibit such Master Servicer from entering into this Agreement or, in
such Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect the ability of such Master Servicer to
perform its obligations under this Agreement;
(vii) Such Master Servicer has errors and omissions insurance
coverage which is in full force and effect and complies with the
requirements of Section 3.07 hereof; and
(viii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by such Master Servicer, or compliance by such Master Servicer
with, this Agreement or the consummation of the transactions of such
Master Servicer contemplated by this Agreement, except for any consent,
approval, authorization or order which has been obtained or can be
obtained prior to the actual performance by such Master Servicer of its
obligations under this Agreement, or which, if not obtained would not have
a materially adverse effect on the ability of such Master Servicer to
perform its obligations hereunder.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.24 Representations, Warranties and Covenants of the
Special Servicer. (a) The Special Servicer hereby represents, warrants and
covenants to the Trustee, for its own benefit and the benefit of the
Certificateholders, each Companion Holder, the Depositor, the Co-Trustee and the
Master Servicers, as of the Closing Date, that:
(i) The Special Servicer is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Virginia, and
the Special Servicer is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, does not (A) violate the Special
Servicer's articles of incorporation and by-laws or (B) constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other material instrument to which it is a party or which is
applicable to it or any of its assets, or (C) violate any law, rule,
regulation, order, judgment or decree to which the Special Servicer or its
property is subject, which, in the case of either (B) or (C), is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or its financial
condition;
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions to be performed by it contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto constitutes a valid, legal and
binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject (A) to
applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law;
(v) The Special Servicer is not in default with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, local or governmental agency, which default, in the
Special Servicer's reasonable judgment is likely to materially and
adversely affect the financial condition or operations of the Special
Servicer or its properties taken as a whole or its ability to perform its
duties and obligations hereunder;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment could reasonably be
expected to materially and adversely affect the ability of the Special
Servicer to perform its obligations under this Agreement;
(vii) Each officer, manager or employee of the Special Servicer that
has or, following the occurrence of a Servicing Transfer Event, would have
responsibilities concerning the servicing and administration of Mortgage
Loans is covered by errors and omissions insurance in the amounts and with
the coverage required by Section 3.07(c); and
(viii) No consent, approval, authorization or order of any court or
governmental agency or body under federal or state law is required for the
execution, delivery and performance by the Special Servicer, or compliance
by the Special Servicer with, this Agreement or the consummation of the
transactions of the Special Servicer contemplated by this Agreement,
except for any consent, approval, authorization or order which has been
obtained or can be obtained prior to the actual performance by the Special
Servicer of its obligations under this Agreement, or which, if not
obtained would not have a materially adverse effect on the ability of the
Special Servicer to perform its obligations hereunder.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.25 Interest Reserve Account and Excess Interest
Distribution Account. (a) On each P&I Advance Date relating to any Interest
Accrual Period ending in any January and on any P&I Advance Date which occurs in
a year which is not a leap year relating to any Interest Accrual Period ending
in any December (unless, in either case, the related Distribution Date will be
the final Distribution Date), the Trustee, in respect of the Actual/360 Mortgage
Loans, shall deposit into the Interest Reserve Account, an amount equal to one
day's interest on the Stated Principal Balance of the Interest Reserve Loans as
of the Due Date occurring in the month preceding the month in which such P&I
Advance Date occurs at the related Net Mortgage Rate, to the extent a full
Monthly Payment or P&I Advance is made in respect thereof (all amounts so
deposited in any consecutive February and January, "Withheld Amounts").
(b) On each P&I Advance Date occurring in March (or in February if
the related Distribution Date will be the final Distribution Date), the Trustee
shall withdraw, from the Interest Reserve Account an amount equal to the
Withheld Amounts from the preceding January and February (if applicable), if
any, and deposit such amount into the Lower-Tier Distribution Account.
(c) On or prior to the related P&I Advance Date, each Master
Servicer is required to remit to the Trustee for deposit into the Excess
Interest Distribution Account an amount equal to the Excess Interest received
during the related Due Period.
Section 3.26 Directing Certificateholder Contact with Master
Servicers. No less often than on a monthly basis, each of the Master Servicers
and the Special Servicer shall, without charge, make a knowledgeable Servicing
Officer via telephone available to verbally answer questions from the Directing
Certificateholder regarding the performance and servicing of the Mortgage Loans
and/or REO Properties for which such Master Servicer or the Special Servicer, as
the case may be, is responsible.
Section 3.27 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of Directing Certificateholder. (a)
Each Controlling Class Certificateholder is hereby deemed to have agreed by
virtue of its purchase of a Certificate to provide its name and address to the
Trustee and to notify the Master Servicers, the Trustee and Special Servicer of
the transfer of any Certificate of a Controlling Class, the selection of a
Directing Certificateholder or the resignation or removal thereof. The Directing
Certificateholder is hereby deemed to have agreed by virtue of its purchase of a
Certificate to notify the Master Servicers, Special Servicer and Trustee when
such Certificateholder is appointed Directing Certificateholder and when it is
removed or resigns. To the extent there is only one Controlling Class
Certificateholder and it is also the Special Servicer, it shall be the Directing
Certificateholder.
(b) Once a Directing Certificateholder has been selected, each of
the Master Servicers, the Special Servicer, the Depositor, the Trustee and each
other Certificateholder (or Certificate Owner, if applicable) shall be entitled
to rely on such selection unless a majority of the Controlling Class
Certificateholders, by Certificate Balance, or such Directing Certificateholder
shall have notified the Master Servicers, Special Servicer, the Trustee, the
Co-Trustee and each other Controlling Class Certificateholder, in writing, of
the resignation of such Directing Certificateholder or the selection of a new
Directing Certificateholder. Upon the resignation of a Directing
Certificateholder, the Trustee shall request the Controlling Class
Certificateholders to select a new Directing Certificateholder.
(c) Until it receives notice to the contrary each of the Master
Servicers and the Trustee shall be entitled to rely on the most recent
notification with respect to the identity of the Controlling Class
Certificateholder, and the Directing Certificateholder.
(d) Upon request, the Trustee shall deliver to the Special Servicer
and the Master Servicers a list of each Controlling Class Certificateholder and
the Directing Certificateholder, including names and addresses. In addition to
the foregoing, within two (2) Business Days of receiving notice of the selection
of a new Directing Certificateholder or the existence of a new Controlling Class
Certificateholder, the Trustee shall notify the Master Servicers and the Special
Servicer. Notwithstanding the foregoing, JER Investors Trust Inc. shall be the
initial Directing Certificateholder and the initial Controlling Class
Certificateholder and shall remain so until a successor is appointed pursuant to
the terms of this Agreement.
(e) Until it receives notice to the contrary, each of the Master
Servicers, the Special Servicer, the Co-Trustee and the Trustee shall be
entitled to rely on the preceding sentence with respect to the identity of the
Directing Certificateholder and the Controlling Class Certificateholder.
(f) If at any time a Book-Entry Certificate belongs to a Controlling
Class, the Trustee shall notify the related Certificateholders (through the
Depository) of such event.
(g) With respect to a Serviced Whole Loan and any approval and
consent rights in this Agreement with respect to such Serviced Whole Loan, the
holder of the related Serviced Mortgage Loan shall exercise such rights in
accordance with the related Intercreditor Agreement, provided that the Directing
Certificateholder may exercise the portion of such rights allocated to the
related Serviced Mortgage Loan.
(h) Each Certificateholder acknowledges and agrees, by its
acceptance of its Certificates, that: (i) the Directing Certificateholder may
have special relationships and interests that conflict with those of Holders of
one or more Classes of Certificates; (ii) the Directing Certificateholder may
act solely in the interests of the Holders of the Controlling Class; (iii) the
Directing Certificateholder does not have any liability or duties to the Holders
of any Class of Certificates other than the Controlling Class; (iv) the
Directing Certificateholder may take actions that favor interests of the Holders
of the Controlling Class over the interests of the Holders of one or more other
Classes of Certificates; and (v) the Directing Certificateholder shall have no
liability whatsoever for having so acted, and no Certificateholder may take any
action whatsoever against the Directing Certificateholder or any director,
officer, employee, agent or principal thereof for having so acted.
(i) All requirements of the Master Servicers and the Special
Servicer to provide notices, reports, statements or other information (including
the access to information on a website) provided to the Directing
Certificateholder contained in this Agreement shall also apply to each Companion
Holder with respect to information relating to the related Serviced Whole Loan.
Section 3.28 Intercreditor Agreements. Each of the Master Servicers
and Special Servicer acknowledges and agrees that each Serviced Whole Loan being
serviced under this Agreement and each Mortgage Loan with mezzanine debt is
subject to the terms and provisions of the related Intercreditor Agreement
and/or related mezzanine intercreditor agreement, as applicable, and each agrees
to service each such Serviced Whole Loan and each Mortgage Loan with mezzanine
debt in accordance with the related Intercreditor Agreement and/or related
mezzanine intercreditor agreement, as applicable, and this Agreement, including,
without limitation, effecting distributions and allocating reimbursement of
expenses in accordance with the related Intercreditor Agreement and/or mezzanine
intercreditor agreement, as applicable, and, in the event of any conflict, the
related Intercreditor Agreement and/or mezzanine intercreditor agreement, as
applicable, shall govern. Notwithstanding anything to the contrary in this
Agreement, each of the Master Servicers and Special Servicer agrees not to take
any action with respect to a Serviced Whole Loan or the related Mortgaged
Property without the prior consent of the related Companion Holder to the extent
that the related Intercreditor Agreement provides that such Companion Holder is
required to consent to such action. When the related Companion Holder's consent
to any such action is required under the related Intercreditor Agreement, the
Directing Certificateholder (other than any Companion Holder acting as Directing
Certificateholder by virtue of being the Serviced Whole Loan Controlling Holder
with respect to such Mortgage Loan) shall not have any consent rights related to
such Mortgage Loan. Nothing herein shall be deemed to override the provisions of
the Intercreditor Agreements with respect to the rights of the Companion Holders
thereunder (but this statement shall not modify the duty of the Master Servicers
and the Special Servicer to act in accordance with the Servicing Standard in
connection with servicing actions) and in the event of any inconsistency between
the provisions of an Intercreditor Agreement and the provisions of this
Agreement relating to the rights and obligations of the Trustee (or the
Co-Trustee, as applicable), as holder of the related Mortgage Loan, and the
related Companion Holder, the Intercreditor Agreement shall control with respect
to such Serviced Whole Loan. Each of the Master Servicers and Special Servicer
acknowledges and agrees that each Companion Holder and mezzanine lender may have
the right to cure certain defaults with respect to the related Serviced Mortgage
Loan, and to purchase the related Mortgage Loan, as applicable, in each case
pursuant to the terms and conditions of the related Intercreditor Agreement
and/or mezzanine intercreditor agreement, as applicable.
Notwithstanding any provision of this Agreement to the contrary,
consistent with the Servicing Standards, the servicing rights and obligations of
the Special Servicer with respect to the Mezz Cap AB Companion Loan will be
limited pursuant to the terms of the related Mezz Cap AB Intercreditor Agreement
prior to, or after the discontinuance of, a "Material Default" (as defined in
Section 3(b) of such Intercreditor Agreement).
Neither the Master Servicers nor the Special Servicer shall have any
liability for any cost, claim or damage that arises from any entitlement in
favor of a Companion Holder under the related Intercreditor Agreement or
conflict between the terms of this Agreement and the terms of such Intercreditor
Agreement. Notwithstanding any provision of any Intercreditor Agreement that may
otherwise require the Master Servicers or the Special Servicer to abide by any
instruction or direction of a Companion Holder, neither the Master Servicers nor
the Special Servicer shall be required to comply with any instruction or
direction the compliance with which requires an Advance that constitutes or
would constitute a Nonrecoverable Advance. In no event shall any expense arising
from compliance with an Intercreditor Agreement (or from compliance with any
intercreditor agreement with respect to a related mezzanine loan) constitute an
expense to be borne by the Master Servicers or Special Servicer for its own
account without reimbursement. In no event shall the Master Servicers or the
Special Servicer be required to consult with or obtain the consent of any
Companion Holder unless such Companion Holder has delivered notice of its
identity and contact information to each of the parties to this Agreement (upon
which notice each of the parties to this Agreement shall be conclusively
entitled to rely). As of the Closing Date, the contact information for the
Companion Holders is set forth in Section 11.05 under this Agreement. In no
event shall the Master Servicers or the Special Servicer be required to consult
with or obtain the consent of a new Directing Certificateholder or a new
Controlling Class Certificateholder if the Trustee has not delivered notice to
the Master Servicers or the Special Servicer as required under Section 3.27(d).
No direction or disapproval of the Companion Holders shall (a)
require or cause the Master Servicers or Special Servicer (i) to violate the
terms of a Mortgage Loan, applicable law or any provision of this Agreement or
(ii) to act, or fail to act, in any manner that is or would not be in accordance
with the Servicing Standards or that would in any way fail to maintain the REMIC
status of any of the Lower-Tier REMIC, the Middle-Tier REMIC and the Upper-Tier
REMIC or (b) result in the imposition of a "prohibited transaction" or
"prohibited contribution" tax under the REMIC Provisions, or (c) materially
expand the scope of the Special Servicer's, Trustee's, Co-Trustee's or each
Master Servicer's responsibilities under this Agreement.
Section 3.29 Companion Paying Agent. (a) Each Master Servicer shall
be the Companion Paying Agent with respect to the Companion Loans related to
Mortgage Loans that it is responsible for servicing hereunder. Each Companion
Paying Agent undertakes to perform such duties and only such duties as are
specifically set forth herein.
(b) No provision of this Agreement shall be construed to relieve any
Companion Paying Agent from liability for its negligent failure to act, bad
faith or its own willful misfeasance; provided, however, that the duties and
obligations of each Companion Paying Agent shall be determined solely by the
express provisions of this Agreement. No Companion Paying Agent shall be liable
except for the performance of such duties and obligations and no implied
covenants or obligations shall be read into this Agreement against a Companion
Paying Agent. In the absence of bad faith on the part of a Companion Paying
Agent, such Companion Paying Agent may conclusively rely, as to the truth and
correctness of the statements or conclusions expressed therein, upon any
resolutions, certificates, statements, opinions, reports, documents, orders or
other instrument furnished to such Companion Paying Agent by any Person and
which on their face do not contradict the requirements of this Agreement.
(c) Upon the resignation or removal of the applicable Master
Servicer pursuant to Article VII of this Agreement, the applicable Companion
Paying Agent shall be deemed simultaneously to resign or be removed.
(d) This Section shall survive the termination of this Agreement or
the resignation or removal of a Companion Paying Agent, as regards rights
accrued prior to such resignation or removal.
Section 3.30 Companion Register. Each Companion Paying Agent shall
maintain a register (collectively, the "Companion Register") on which it will
record the names and address of, and wire transfer instructions for, the
applicable Companion Holders from time to time, to the extent such information
is provided in writing to it by each Companion Holder. The initial Companion
Holders, along with their respective name, address, wiring instructions and tax
identification number, are listed on Exhibit S hereto. In the event a Companion
Holder transfers a Companion Loan without notice to the relevant Companion
Paying Agent, such Companion Paying Agent shall have no liability for any
misdirected payment in the Companion Loan and shall have no obligation to
recover and redirect such payment.
The applicable Companion Paying Agent shall promptly provide the
name and address of the Companion Holder to any party hereto or any successor
Companion Holder upon written request and any such Person may, without further
investigation, conclusively rely upon such information. Such Companion Paying
Agent shall have no liability to any Person for the provision of any such name
and address.
Section 3.31 Swap Contracts. (a) On or before the Closing Date, the
Trustee, not in its individual capacity but solely in its capacity as Trustee,
on behalf of the Trust, shall enter into the Swap Contracts and related
agreements with the Swap Counterparty.
(b) On the Business Day prior to each P&I Advance Date, based on the
reports provided by each Master Servicer pursuant to Section 3.12(e),
information that the Trustee obtains from each Swap Counterparty and the
respective Swap Contract, and subject to the priorities set forth in Sections
4.01(a), 4.01(b) and 4.01(d) hereof, the Trustee shall calculate the Class
A-2SFL Net Swap Payment and the Class A-JFL Net Swap Payment and notify the
related Swap Counterparty in accordance with the terms of the respective Swap
Contracts.
(c) No later than 4:00 p.m. New York City time on each Distribution
Date, the Trustee shall remit the Class A-2SFL Net Swap Payment and the Class
A-JFL Net Swap Payment, if any, to the related Swap Counterparty from the
related Floating Rate Account; provided, that upon the occurrence and during the
continuation of a Class A-2SFL Distribution Conversion or Class A-JFL
Distribution Conversion, the Trustee shall not make such payments to such Swap
Counterparty, respectively. Promptly upon receipt of any payment or other
receipt in respect of the Swap Contracts, the Trustee shall deposit the same
into the related Floating Rate Account.
(d) The Trustee shall at all times enforce the Trust's rights under
the Swap Contracts. In the event of a Swap Default, the Trustee shall promptly
provide written notice to the Holders of the Class A-2SFL Certificates and the
Class A-JFL Certificates, as applicable, and shall be required, subject to the
Trustee's determination that costs of enforcement will be recoverable from or
indemnified by the Holders of the Class A-2SFL Certificates and the Class A-JFL
Certificates, respectively, to take such actions (following the expiration of
any applicable grace period specified in the Swap Contracts), unless otherwise
directed in writing by the Holders of 25% (by Certificate Balance) of the Class
A-2SFL Certificates or Class A-JFL Certificates, as applicable, to enforce the
rights of the Trust under the applicable Swap Contract as may be permitted by
the terms thereof and use any Swap Termination Fees received from the applicable
Swap Counterparty to enter into a replacement interest rate swap contract on
substantially identical terms or on such other terms reasonably acceptable to
the Trustee, with a replacement swap counterparty that would not cause a Rating
Agency Trigger Event, subject, in each case, to written confirmation by the
Rating Agencies that such action will not result in a qualification, downgrade
or withdrawal of the then-current ratings of the Certificates. If the costs
attributable to entering into a replacement interest rate swap contract would
exceed the amount of any Swap Termination Fees, a replacement interest rate swap
contract shall not be entered into and any such proceeds will instead be
distributed, pro rata, to the Holders of the Class A-2SFL Certificates or Class
A-JFL Certificates, as applicable, on the immediately succeeding Distribution
Date. The Trustee shall be entitled to require reasonable assurances of payment
(including, without limitation, reasonable indemnity therefor) from the Holders
of the Class A-2SFL Certificates or the Class A-JFL Certificates prior to the
incurrence of any costs in connection with the enforcement of the related Swap
Contract.
Any Class A-2SFL Distribution Conversion and Class A-JFL
Distribution Conversion shall become permanent following the determination by
the Trustee not to enter into a replacement interest rate swap contract and
distribution of any Swap Termination Fees to the Holders of the Class A-2SFL
Certificates and the Class A-JFL Certificates, respectively. Any such Swap
Default (or termination of the Swap Contract) and the consequent Class A-2SFL
Distribution Conversion or Class A-JFL Distribution Conversion shall not, in and
of itself, constitute an Event of Default under this Agreement.
Upon any change (or notification to the Trustee that such change is
imminent) in the payment terms on the Class A-2SFL Certificates or Class A-JFL
Certificates including as a result of a Class A-2SFL Distribution Conversion or
a Class A-JFL Distribution Conversion, termination of a Class A-2SFL
Distribution Conversion or a Class A-JFL Distribution Conversion, a Swap Default
or the cure of a Swap Default, the Trustee shall promptly notify DTC of the
change in payment terms.
(e) In the event that the corresponding Swap Contract is terminated
and no replacement interest rate swap agreement is entered into within 30 days
of such termination, the Trustee shall provide notice of such termination to the
Class A-2SFL Certificateholders, which notice shall include: "The Swap Contract
with respect to the Class A-2SFL Certificates is terminated as of [date].
Certificateholders and beneficial owners that are Plans are advised that the
Exemption will no longer apply to the Class A-2SFL Certificates, effective 60
days after the receipt of this notice. "Exemption", as used in this notice,
shall mean Prohibited Transaction Exemption 2002-19, 67 Fed. Reg. 14,979 (March
28, 2002), granted by the U.S. Department of Labor to X.X. Xxxxxx Securities
Inc. All other capitalized terms used in this notice shall have the meaning
assigned to them in the Pooling and Servicing Agreement." In the event that the
corresponding Swap Contract is terminated and no replacement interest rate swap
agreement is entered into within 30 days of such termination, the Trustee shall
provide notice of such termination to the Class A-JFL Certificateholders, which
notice shall include: "The Swap Contract with respect to the Class A-JFL
Certificates is terminated as of [date]. Certificateholders and beneficial
owners that are Plans are advised that the Exemption will no longer apply to the
Class A-JFL Certificates, effective 60 days after the receipt of this notice.
"Exemption", as used in this notice, shall mean Prohibited Transaction Exemption
2002-19, 67 Fed. Reg. 14,979 (March 28, 2002), granted by the U.S. Department of
Labor to X.X. Xxxxxx Securities Inc. All other capitalized terms used in this
notice shall have the meaning assigned to them in the Pooling and Servicing
Agreement."
(f) Any costs and expenses related to the Swap Contracts (other than
Class A-2SFL Net Swap Payments and the Class A-JFL Net Swap Payments) will only
be payable (subsequent to the distribution of all amounts of principal and
interest and reimbursement of Collateral Support Deficits payable to the Class
A-2SFL Certificates and the Class A-JFL Certificates) from the related Floating
Rate Account, which in no circumstances will constitute Additional Trust Fund
Expenses.
(g) The Trustee shall establish two Swap Counterparty Collateral
Accounts. The Trustee shall deposit all collateral received from the Swap
Counterparty under any Credit Support Annex (as defined in the related Swap
Contract) of the related Swap Contract into the related Swap Counterparty
Collateral Account. The only permitted withdrawal from or application of funds
on deposit in, or otherwise to the credit of, a Swap Counterparty Collateral
Account shall be (i) for application to obligations of the Swap Counterparty
under the applicable Swap Contract if such Swap Contract becomes subject to
early termination or upon default by the Swap Counterparty or (ii) to return
collateral to the Swap Counterparty when and as required by the applicable Swap
Contract. The Trustee agrees to give the Swap Counterparty prompt notice if it
obtains knowledge that a Swap Counterparty Collateral Account or any funds on
deposit therein or otherwise to the credit of a Swap Counterparty Collateral
Account, shall become subject to any writ, order, judgment, warrant of
attachment, execution or similar process. Funds credited to any Swap
Counterparty Collateral Account shall be applied as contemplated in the
applicable Swap Contract. Subject to the terms of the applicable Swap Contract,
proceeds of the liquidation of Swap Contract collateral (if such Swap Contract
becomes subject to early termination or upon default by the Swap Counterparty)
shall be deposited in the Floating Rate Account for application as applicable.
Section 3.32 [RESERVED]
Section 3.33 Certain Matters Relating to the Non-Serviced Mortgage
Loans.
(a) In the event that any of the trustee, master servicer or special
servicer under any Non-Serviced Pooling Agreement shall be replaced in
accordance with the terms of such Non-Serviced Pooling Agreement, the Master
Servicer and the Special Servicer shall acknowledge its successor as the
successor to such trustee, master servicer or special servicer, as the case may
be.
(b) The applicable Master Servicer shall deliver, or cause to be
delivered, to the Trustee, following receipt from the master servicer, special
servicer or trustee under any Non-Serviced Pooling Agreement, any servicing
reports concerning the related Whole Loan.
Section 3.34 Additional Matters Relating to the Certain of the
Mortgage Loans.
(a) The applicable Master Servicer, upon receiving knowledge, shall
notify Fitch if the related Mortgagor of any of the 10 largest Mortgage Loans
(or Crossed Group that would be one of the 10 largest Mortgage Loans if it were
treated as single Mortgage Loan) by Stated Principal Balance incurs additional
subordinate, pari-passu or mezzanine debt in accordance with the related
Mortgage Loan documents.
(b) With respect to the College Green Mortgage Loan, Master Servicer
No. 1 shall use commercially reasonable efforts to cause the related Mortgagor
to agree to an amendment of the related Mortgage (relating to the provision in
the Mortgage providing for the release of a building and certain adjoining
property) within 90 days of the Closing Date. The amendment shall be
substantially in the form provided to Master Servicer No. 1 by the Depositor and
shall be subject to the approval of the Depositor. Absent such an amendment of
the Mortgage, Master Servicer No. 1 or the Special Servicer, as the case may be,
shall, without exercising any discretion with respect to approving or
disapproving the boundaries of the parcel to be released, approve a release of
property under the terms of the Mortgage if (i) the release of property complies
with the subdivision approval by the municipality in which the related Mortgaged
Property is located and (ii) the other conditions to such release under the
Mortgage are satisfied by the Mortgagor.
[End of Article III]
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions. (a) On each Distribution Date, to the
extent of the Available Distribution Amount for such Distribution Date, the
Trustee shall be deemed to transfer the Lower-Tier Regular Distribution Amount
from the Lower-Tier Distribution Account to the Middle-Tier Distribution Account
and from the Middle-Tier Distribution Account to the Upper-Tier Distribution
Account in the amounts and priorities set forth in Section 4.01(b) with respect
to each Class of Uncertificated Lower-Tier Interests and Uncertificated
Middle-Tier Interests, and immediately thereafter, shall make distributions
thereof from the Upper-Tier Distribution Account in the following order of
priority, satisfying in full, to the extent required and possible, each priority
before making any distribution with respect to any succeeding priority:
(i) first, concurrently (A) to the Holders of the Class A-1
Certificates, Class A-2 Certificates and Class A-3 Certificates, pro rata,
(based upon their respective entitlements to interest for such
Distribution Date), in respect of interest, from the Group R Available
Distribution Amount attributable to Mortgage Loans in Loan Group R-1 up to
an amount equal to the aggregate Interest Distribution Amount in respect
of such Classes of Certificates; (B) to the Holders of Class A-1S
Certificates, the Class A-2S Certificates, the Class A-2SFL Regular
Interest and the Class A-3S Certificates, pro rata (based on their
respective entitlements to interest) from the Group S Available
Distribution Amount up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Classes of Certificates for such
Distribution Date; (C) to the Holders of the Class A-1A Certificates, in
respect of interest, from the Group R Available Distribution Amount
attributable to Mortgage Loans in Loan Group R-2 up to an amount equal to
the aggregate Interest Distribution Amount in respect of such Class of
Certificates; and (D) (x) to the Holders of the Class X Certificates, in
respect of interest, from the Group R Available Distribution Amount up to
an amount equal to the Class X-R Interest Distribution Amount and (y) from
the Group S Available Distribution Amount up to an amount equal to the
Class X-S Interest Distribution Amount; provided, however, on any
Distribution Date where the Group R Available Distribution Amount (or
applicable portion of the Group R Available Distribution Amount) is not
sufficient to make distributions in full to the Class A or Class X
Certificates provided above, the Group R Available Distribution Amount for
such Distribution Date will be allocated among the Class A and Class X
Certificates, pro rata, in accordance with the respective amounts of
Distributable Certificate Interest (or, in the case of the Class X
Certificates, the Class X-R Interest Distribution Amount) in respect of
such Classes on such Distribution Date, in an amount equal to all Interest
Distribution Amounts in respect of each such Class for such Distribution
Date.
(ii) second, to the Holders of the Class A-1 Certificates, Class
A-1S Certificates, Class A-2 Certificates, Class A-2S Certificates, Class
A-3 Certificates, Class A-3S Certificates and Class A-1A Certificates and
the Class A-2SFL Regular Interest, in reduction of the Certificate
Balances thereof, concurrently: (A)(1) first, to the Holders of the Class
A-1 Certificates, in an amount equal to the Group R-1 Principal
Distribution Amount for such Distribution Date and, after the Certificate
Balance of the Class A-1A Certificates is reduced to zero, the Group R-2
Principal Distribution Amount for such Distribution Date remaining after
payments specified in clause (C) below have been made on such Distribution
Date, until the outstanding Certificate Balance of the Class A-1
Certificates is reduced to zero, (2) then, to the Holders of the Class A-2
Certificates, in an amount equal to the Group R-1 Principal Distribution
Amount (or the portion of it remaining after payments specified in clause
(A)(1) above have been made) for such Distribution Date and, after the
Certificate Balance of the Class A-1A Certificates has been reduced to
zero, the Group R-2 Principal Distribution Amount remaining after payments
specified in clause (A)(1) above and clause (C) below have been made on
such Distribution Date, until the outstanding Certificate Balance of the
Class A-2 Certificates is reduced to zero and (3) then, to Holders of the
Class A-3 Certificates, in an amount equal to the Group R-1 Principal
Distribution Amount (or the portion of it remaining after payments
specified in clauses (A)(1) and (A)(2) above have been made) for such
Distribution Date and, after the Certificate Balance of the Class A-1A
Certificates is reduced to zero, the Group R-2 Principal Distribution
Amount remaining after payments specified in clauses (A)(1) and (A)(2)
above and clause (C) below have been made on such Distribution Date, until
the outstanding Certificate Balance of the Class A-3 Certificates is
reduced to zero; (B)(1) first, to the Holders of the Class A-1S
Certificates, in an amount equal to the Group S Principal Distribution
Amount for such Distribution Date, until the Certificate Balance of the
Class A-1S Certificates is reduced to zero, (2) then, to the holders of
the Class A-2S Certificates and the Class A-2SFL Regular Interest, pro
rata, based on their outstanding Certificate Balances, in an amount equal
to such holder's share of the Group S Principal Distribution Amount (or
the portion of it remaining after payments specified in clause (B)(1)
above have been made) for such Distribution Date, until the outstanding
Certificate Balances of the Class A-2S Certificates and the Class A-2SFL
Regular Interest are reduced to zero and (3) then, to the holders of the
Class A-3S Certificates, in an amount equal to the Group S Principal
Distribution Amount (or the portion of it remaining after payments
specified in clauses (B)(1) and (B)(2) above have been made) for such
Distribution Date, until the outstanding Certificate Balance of the Class
A-3S Certificates is reduced to zero, and (C) to the Class A-1A
Certificates, in an amount equal to the Group R-2 Principal Distribution
Amount and, after the outstanding Certificate Balance of the Class A-3
Certificates has been reduced to zero, the Group R-1 Principal
Distribution Amount remaining after payments specified in clauses (A)(1),
(A)(2) and (A)(3) above have been made on such Distribution Date, until
the outstanding Certificate Balance of the Class A-1A Certificates is
reduced to zero;
(iii) third, to the Holders of the Class A-1 Certificates, Class
A-1S Certificates, Class A-2 Certificates, Class A-2S Certificates, Class
A-3 Certificates Class A-3S Certificates and Class A-1A Certificates and
the Class A-2SFL Regular Interest, pro rata (based upon the aggregate
unreimbursed Collateral Support Deficit allocated to each such Class),
until all amounts of Collateral Support Deficit previously allocated to
such Classes, but not previously reimbursed, have been reimbursed in full;
(iv) fourth, concurrently, (i) to the Holders of the Class A-M
Certificates, from the Group R Available Distribution Amount, up to an
amount equal to the aggregate Interest Distribution Amount in respect of
such Classes A-M Certificates for such Distribution Date, and (ii) to the
Holders of the Class A-MS Certificates from the Group S Available
Distribution Amount, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class A-MS Certificates for such
Distribution Date;
(v) fifth, to the Holders of the Class A-M and Class A-MS
Certificates, in reduction of the Certificate Balances thereof,
concurrently: (i) after the outstanding Certificate Balance of the Class A
Certificates has been reduced to zero, to the Holders of the Class A-M
Certificates, in reduction of their Certificate Balances, an amount equal
to the Group R Principal Distribution Amount (or the portion thereof
remaining after distributions in respect of the Class A Certificates on
such Distribution Date), until the Certificate Balance of the Class A-M
Certificates has been reduced to zero, and (ii) after the outstanding
Certificate Balances of the Class A-S Certificates (other than the Class
A-2SFL Certificates) and the A-2SFL Regular Interest have been reduced to
zero, to the Holders of the Class A-MS Certificates, in reduction of their
Certificate Balance, an amount equal to the Group S Principal Distribution
Amount (or the portion of it remaining after distributions on the Class
A-S Certificates (other than the Class A-2SFL Certificates) and the A-2SFL
Regular Interest on such Distribution Date), until the outstanding
Certificate Balance of the Class A-MS Certificates has been reduced to
zero;
(vi) sixth, to the Holders of the Class A-M and Class A-MS
Certificates, pro rata (based upon the aggregate unreimbursed Collateral
Support Deficit allocated to that Class) until all amounts of Collateral
Support Deficit previously allocated to those Classes, but not previously
reimbursed, have been reimbursed in full;
(vii) seventh, concurrently, (i) to the Holders of the Class A-J
Certificates and the Class A-JFL Regular Interest, pro rata (based on
their respective entitlements to interest), from the Group R Available
Distribution Amount, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Classes of Certificates for such
Distribution Date, and (ii) to the Holders of the Class A-JS Certificates
from the Group S Available Distribution Amount, up to an amount equal to
the aggregate Interest Distribution Amount in respect of such Class A-JS
Certificates for such Distribution Date;
(viii) eighth, to the Holders of the Class A-J and Class A-JS
Certificates and the Class A-JFL Regular Interest, in reduction of the
Certificate Balances thereof, concurrently: (i) after the outstanding
Certificate Balances of the Class A Certificates and Class A-M
Certificates have been reduced to zero, to the Holders of the Class A-J
Certificates and the Class A-JFL Regular Interest, pro rata, based on
their outstanding Certificate Balances, in reduction of their Certificate
Balances, an amount equal to the Group R Principal Distribution Amount (or
the portion thereof remaining after distributions in respect of the Class
A Certificates and Class A-M Certificates on such Distribution Date),
until the Certificate Balances of the Class A-J Certificates and the Class
A-JFL Regular Interest have been reduced to zero, and (ii) after the
outstanding Certificate Balances of the Class A-S Certificates (other than
the Class A-2SFL Certificates) and Class A-MS Certificates and the A-2SFL
Regular Interest have been reduced to zero, to the Holders of the Class
A-JS Certificates, in reduction of their Certificate Balance, an amount
equal to the Group S Principal Distribution Amount (or the portion of it
remaining after distributions on the Class A-S Certificates (other than
the Class A-2SFL Certificates) and Class A-MS Certificates and the A-2SFL
Regular Interest on such Distribution Date), until the outstanding
Certificate Balance of the Class A-JS Certificates has been reduced to
zero;
(ix) ninth, to the Holders of the Class A-J and Class A-JS
Certificates and the Class A-JFL Regular Interest, pro rata (based upon
the aggregate unreimbursed Collateral Support Deficit allocated to that
Class) until all amounts of Collateral Support Deficit previously
allocated to those Classes, but not previously reimbursed, have been
reimbursed in full;
(x) tenth, concurrently, (i) to the Holders of the Class B
Certificates from the Group R Available Distribution Amount, up to an
amount equal to the aggregate Interest Distribution Amount in respect of
such Class B Certificates for such Distribution Date, and (ii) to the
Holders of the Class B-S Certificates from the Group S Available
Distribution Amount, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class B-S Certificates for such
Distribution Date;
(xi) eleventh, to the Holders of the Class B and Class B-S
Certificates, in reduction of the Certificate Balances thereof,
concurrently: (i) after the outstanding Certificate Balances of the Class
A Certificates, Class A-M Certificates and Class A-J Certificates and the
Class A-JFL Regular Interest have been reduced to zero, to the Holders of
the Class B Certificates, in reduction of their Certificate Balance, an
amount equal to the Group R Principal Distribution Amount (or the portion
thereof remaining after distributions in respect of the Class A
Certificates, Class A-M Certificates and Class A-J Certificates and the
Class A-JFL Regular Interest on such Distribution Date), until the
Certificate Balance of the Class B Certificates has been reduced to zero,
and (ii) after the outstanding Certificate Balances of the Class A-S
Certificates (other than the Class A-2SFL Certificates), Class A-MS
Certificates and Class A-JS Certificates and the A-2SFL Regular Interest
have been reduced to zero, to the Holders of the Class B-S Certificates,
in reduction of their Certificate Balance, an amount equal to the Group S
Principal Distribution Amount (or the portion of it remaining after
distributions on the Class A-S Certificates (other than the Class A-2SFL
Certificates), Class A-MS Certificates and Class A-JS Certificates and the
A-2SFL Regular Interest on such Distribution Date), until the outstanding
Certificate Balance of the Class B-S Certificates has been reduced to
zero;
(xii) twelfth, to the Holders of the Class B and Class B-S
Certificates, pro rata (based upon the aggregate unreimbursed Collateral
Support Deficit allocated to that Class) until all amounts of Collateral
Support Deficit previously allocated to those Classes, but not previously
reimbursed, have been reimbursed in full;
(xiii) thirteenth, concurrently, (i) to the Holders of the Class C
Certificates from the Group R Available Distribution Amount, up to an
amount equal to the aggregate Interest Distribution Amount in respect of
such Class C Certificates for such Distribution Date, and (ii) to the
Holders of the Class C-S Certificates from the Group S Available
Distribution Amount, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class C-S Certificates for such
Distribution Date;
(xiv) fourteenth, to the Holders of the Class C and Class C-S
Certificates, in reduction of the Certificate Balances thereof,
concurrently: (i) after the outstanding Certificate Balances of the Class
A Certificates, Class A-M Certificates, Class A-J Certificates and Class B
Certificates and the Class A-JFL Regular Interest have been reduced to
zero, to the Holders of the Class C Certificates, in reduction of their
Certificate Balance, an amount equal to the Group R Principal Distribution
Amount (or the portion thereof remaining after distributions in respect of
the Class A Certificates, Class A-M Certificates, Class A-J Certificates
and Class B Certificates and the Class A-JFL Regular Interest on such
Distribution Date), until the Certificate Balance of the Class C
Certificates has been reduced to zero, and (ii) after the outstanding
Certificate Balances of the Class A-S Certificates (other than the Class
A-2SFL Certificates), Class A-MS Certificates, Class A-JS Certificates and
Class B-S Certificates and the A-2SFL Regular Interest have been reduced
to zero, to the Holders of the Class C-S Certificates, in reduction of
their Certificate Balance, an amount equal to the Group S Principal
Distribution Amount (or the portion of it remaining after distributions on
the Class A-S Certificates (other than the Class A-2SFL Certificates),
Class A-MS Certificates, Class A-JS Certificates and Class B-S
Certificates and the A-2SFL Regular Interest on such Distribution Date),
until the outstanding Certificate Balance of the Class C-S Certificates
has been reduced to zero;
(xv) fifteenth, to the Holders of the Class C and Class C-S
Certificates, pro rata (based upon the aggregate unreimbursed Collateral
Support Deficit allocated to that Class) until all amounts of Collateral
Support Deficit previously allocated to those Classes, but not previously
reimbursed, have been reimbursed in full;
(xvi) sixteenth, concurrently, (i) to the Holders of the Class D
Certificates from the Group R Available Distribution Amount, up to an
amount equal to the aggregate Interest Distribution Amount in respect of
such Class D Certificates for such Distribution Date, and (ii) to the
Holders of the Class D-S Certificates from the Group S Available
Distribution Amount, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class D-S Certificates for such
Distribution Date;
(xvii) seventeenth, to the Holders of the Class D and Class D-S
Certificates, in reduction of the Certificate Balances thereof,
concurrently: (i) after the outstanding Certificate Balances of the Class
A Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates and Class C Certificates and the Class A-JFL Regular Interest
have been reduced to zero, to the Holders of the Class D Certificates, in
reduction of their Certificate Balance, an amount equal to the Group R
Principal Distribution Amount (or the portion thereof remaining after
distributions in respect of the Class A Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates and Class C
Certificates and the Class A-JFL Regular Interest on such Distribution
Date), until the Certificate Balance of the Class D Certificates has been
reduced to zero, and (ii) after the outstanding Certificate Balances of
the Class A-S Certificates (other than the Class A-2SFL Certificates),
Class A-MS Certificates, Class A-JS Certificates, Class B-S Certificates
and Class C-S Certificates and the A-2SFL Regular Interest have been
reduced to zero, to the Holders of the Class D-S Certificates, in
reduction of their Certificate Balance, an amount equal to the Group S
Principal Distribution Amount (or the portion of it remaining after
distributions on the Class A-S Certificates (other than the Class A-2SFL
Certificates), Class A-MS Certificates, Class A-JS Certificates, Class B-S
Certificates and Class C-S Certificates and the A-2SFL Regular Interest on
such Distribution Date), until the outstanding Certificate Balance of the
Class D-S Certificates has been reduced to zero;
(xviii) eighteenth, to the Holders of the Class D and Class D-S
Certificates, pro rata (based upon the aggregate unreimbursed Collateral
Support Deficit allocated to that Class) until all amounts of Collateral
Support Deficit previously allocated to those Classes, but not previously
reimbursed, have been reimbursed in full;
(xix) nineteenth, concurrently, (i) to the Holders of the Class E
Certificates from the Group R Available Distribution Amount, up to an
amount equal to the aggregate Interest Distribution Amount in respect of
such Class E Certificates for such Distribution Date, and (ii) to the
Holders of the Class E-S Certificates from the Group S Available
Distribution Amount, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class E-S Certificates for such
Distribution Date;
(xx) twentieth, to the Holders of the Class E and Class E-S
Certificates, in reduction of the Certificate Balances thereof,
concurrently: (i) after the outstanding Certificate Balances of the Class
A Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates and Class D Certificates and the Class
A-JFL Regular Interest have been reduced to zero, to the Holders of the
Class E Certificates, in reduction of their Certificate Balance, an amount
equal to the Group R Principal Distribution Amount (or the portion thereof
remaining after distributions in respect of the Class A Certificates,
Class A-M Certificates, Class A-J Certificates, Class B Certificates,
Class C Certificates and Class D Certificates and the Class A-JFL Regular
Interest on such Distribution Date), until the Certificate Balance of the
Class E Certificates has been reduced to zero, and (ii) after the
outstanding Certificate Balances of the Class A-S Certificates (other than
the Class A-2SFL Certificates), Class A-MS Certificates, Class A-JS
Certificates, Class B-S Certificates, Class C-S Certificates and Class D-S
Certificates and the A-2SFL Regular Interest have been reduced to zero, to
the Holders of the Class E-S Certificates, in reduction of their
Certificate Balance, an amount equal to the Group S Principal Distribution
Amount (or the portion of it remaining after distributions on the Class
A-S Certificates (other than the Class A-2SFL Certificates), Class A-MS
Certificates, Class A-JS Certificates, Class B-S Certificates, Class C-S
Certificates and Class D-S Certificates and the A-2SFL Regular Interest on
such Distribution Date), until the outstanding Certificate Balance of the
Class E-S Certificates has been reduced to zero;
(xxi) twenty-first, to the Holders of the Class E and Class E-S
Certificates, pro rata (based upon the aggregate unreimbursed Collateral
Support Deficit allocated to that Class) until all amounts of Collateral
Support Deficit previously allocated to those Classes, but not previously
reimbursed, have been reimbursed in full;
(xxii) twenty-second, concurrently, (i) to the Holders of the Class
F Certificates from the Group R Available Distribution Amount, up to an
amount equal to the aggregate Interest Distribution Amount in respect of
such Class F Certificates for such Distribution Date, and (ii) to the
Holders of the Class F-S Certificates from the Group S Available
Distribution Amount, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class F-S Certificates for such
Distribution Date;
(xxiii) twenty-third, to the Holders of the Class F and Class F-S
Certificates, in reduction of the Certificate Balances thereof,
concurrently: (i) after the outstanding Certificate Balances of the Class
A Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates and Class E
Certificates and the Class A-JFL Regular Interest have been reduced to
zero, to the Holders of the Class F Certificates, in reduction of their
Certificate Balance, an amount equal to the Group R Principal Distribution
Amount (or the portion thereof remaining after distributions in respect of
the Class A Certificates, Class A-M Certificates, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates and Class
E Certificates and the Class A-JFL Regular Interest on such Distribution
Date), until the Certificate Balance of the Class F Certificates has been
reduced to zero, and (ii) after the outstanding Certificate Balances of
the Class A-S Certificates (other than the Class A-2SFL Certificates),
Class A-MS Certificates, Class A-JS Certificates, Class B-S Certificates,
Class C-S Certificates, Class D-S Certificates and Class E-S Certificates
and the A-2SFL Regular Interest have been reduced to zero, to the Holders
of the Class F-S Certificates, in reduction of their Certificate Balance,
an amount equal to the Group S Principal Distribution Amount (or the
portion of it remaining after distributions on the Class A-S Certificates
(other than the Class A-2SFL Certificates), Class A-MS Certificates, Class
A-JS Certificates, Class B-S Certificates, Class C-S Certificates, Class
D-S Certificates and Class E-S Certificates and the A-2SFL Regular
Interest on such Distribution Date), until the outstanding Certificate
Balance of the Class F-S Certificates has been reduced to zero;
(xxiv) twenty-fourth, to the Holders of the Class F and Class F-S
Certificates, pro rata (based upon the aggregate unreimbursed Collateral
Support Deficit allocated to that Class) until all amounts of Collateral
Support Deficit previously allocated to those Classes, but not previously
reimbursed, have been reimbursed in full;
(xxv) twenty-fifth, concurrently, (i) to the Holders of the Class G
Certificates from the Group R Available Distribution Amount, up to an
amount equal to the aggregate Interest Distribution Amount in respect of
such Class G Certificates for such Distribution Date, and (ii) to the
Holders of the Class G-S Certificates from the Group S Available
Distribution Amount, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class G-S Certificates for such
Distribution Date;
(xxvi) twenty-sixth, to the Holders of the Class G and Class G-S
Certificates, in reduction of the Certificate Balances thereof,
concurrently: (i) after the outstanding Certificate Balances of the Class
A Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates and Class F Certificates and the Class A-JFL Regular Interest
have been reduced to zero, to the Holders of the Class G Certificates, in
reduction of their Certificate Balance, an amount equal to the Group R
Principal Distribution Amount (or the portion thereof remaining after
distributions in respect of the Class A Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates and Class F
Certificates and the Class A-JFL Regular Interest on such Distribution
Date), until the Certificate Balance of the Class G Certificates has been
reduced to zero, and (ii) after the outstanding Certificate Balances of
the Class A-S Certificates (other than the Class A-2SFL Certificates),
Class A-MS Certificates, Class A-JS Certificates, Class B-S Certificates,
Class C-S Certificates, Class D-S Certificates, Class E-S Certificates and
Class F-S Certificates and the A-2SFL Regular Interest have been reduced
to zero, to the Holders of the Class G-S Certificates, in reduction of
their Certificate Balance, an amount equal to the Group S Principal
Distribution Amount (or the portion of it remaining after distributions on
the Class A-S Certificates (other than the Class A-2SFL Certificates),
Class A-MS Certificates, Class A-JS Certificates, Class B-S Certificates,
Class C-S Certificates, Class D-S Certificates, Class E-S Certificates and
Class F-S Certificates and the A-2SFL Regular Interest on such
Distribution Date), until the outstanding Certificate Balance of the Class
G-S Certificates has been reduced to zero;
(xxvii) twenty-seventh, to the Holders of the Class G and Class G-S
Certificates, pro rata (based upon the aggregate unreimbursed Collateral
Support Deficit allocated to that Class) until all amounts of Collateral
Support Deficit previously allocated to those Classes, but not previously
reimbursed, have been reimbursed in full;
(xxviii) twenty-eight, concurrently, (i) to the Holders of the Class
H Certificates from the Group R Available Distribution Amount, up to an
amount equal to the aggregate Interest Distribution Amount in respect of
such Class H Certificates for such Distribution Date, and (ii) to the
Holders of the Class H-S Certificates from the Group S Available
Distribution Amount, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class H-S Certificates for such
Distribution Date;
(xxix) twenty-ninth, to the Holders of the Class H and Class H-S
Certificates, in reduction of the Certificate Balances thereof,
concurrently: (i) after the outstanding Certificate Balances of the Class
A Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates and Class G Certificates and the Class
A-JFL Regular Interest have been reduced to zero, to the Holders of the
Class H Certificates, in reduction of their Certificate Balance, an amount
equal to the Group R Principal Distribution Amount (or the portion thereof
remaining after distributions in respect of the Class A Certificates,
Class A-M Certificates, Class A-J Certificates, Class B Certificates,
Class C Certificates, Class D Certificates, Class E Certificates, Class F
Certificates and Class G Certificates and the Class A-JFL Regular Interest
on such Distribution Date), until the Certificate Balance of the Class H
Certificates has been reduced to zero, and (ii) after the outstanding
Certificate Balances of the Class A-S Certificates (other than the Class
A-2SFL Certificates), Class A-MS Certificates, Class A-JS Certificates,
Class B-S Certificates, Class C-S Certificates, Class D-S Certificates,
Class E-S Certificates, Class F-S Certificates and Class G-S Certificates
and the A-2SFL Regular Interest have been reduced to zero, to the Holders
of the Class H-S Certificates, in reduction of their Certificate Balance,
an amount equal to the Group S Principal Distribution Amount (or the
portion of it remaining after distributions on the Class A-S Certificates
(other than the Class A-2SFL Certificates), Class A-MS Certificates, Class
A-JS Certificates, Class B-S Certificates, Class C-S Certificates, Class
D-S Certificates, Class E-S Certificates, Class F-S Certificates and Class
G-S Certificates and the A-2SFL Regular Interest on such Distribution
Date), until the outstanding Certificate Balance of the Class H-S
Certificates has been reduced to zero;
(xxx) thirtieth, to the Holders of the Class H and Class H-S
Certificates, pro rata (based upon the aggregate unreimbursed Collateral
Support Deficit allocated to that Class) until all amounts of Collateral
Support Deficit previously allocated to those Classes, but not previously
reimbursed, have been reimbursed in full;
(xxxi) thirty-first, to the Holders of the Class J Certificates, in
respect of interest, up to the aggregate Interest Distribution Amount in
respect of such Class of Certificates for such Distribution Date;
(xxxii) thirty-second, following reduction of the Certificate
Balances of the Class A Certificates, Class A-S Certificates (other than
the Class A-2SFL Certificates), Class A-M Certificates, Class A-MS
Certificates, Class A-J Certificates, Class A-JS Certificates, Class B
Certificates, Class B-S Certificates, Class C Certificates, Class C-S
Certificates, Class D Certificates, Class D-S Certificates, Class E
Certificates, Class E-S Certificates, Class F Certificates, Class F-S
Certificates, Class G Certificates, Class G-S Certificates, Class H
Certificates and Class H-S Certificates and the Class A-2SFL Regular
Interest and the Class A-JFL Regular Interest to zero, to the Holders of
the Class J Certificates, an amount equal to the Principal Distribution
Amount (or the portion remaining after distributions on the Class A
Certificates, Class A-S Certificates (other than the Class A-2SFL
Certificates), Class A-M Certificates, Class A-MS Certificates, Class A-J
Certificates, Class A-JS Certificates, Class B Certificates, Class B-S
Certificates, Class C Certificates, Class C-S Certificates, Class D
Certificates, Class D-S Certificates, Class E Certificates, Class E-S
Certificates, Class F Certificates, Class F-S Certificates, Class G
Certificates, Class G-S Certificates, Class H Certificates and Class H-S
Certificates and the Class A-2SFL Regular Interest and the Class A-JFL
Regular Interest on such Distribution Date), until the outstanding
Certificate Balance of the Class J Certificates has been reduced to zero;
(xxxiii) thirty-third, to the Holders of the Class J Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class J Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxiv) thirty-fourth, to the Holders of the Class K Certificates,
in respect of interest, up to the aggregate Interest Distribution Amount
in respect of such Class of Certificates for such Distribution Date;
(xxxv) thirty-fifth, following reduction of the Certificate Balances
of the Class A Certificates, Class A-S Certificates (other than the Class
A-2SFL Certificates), Class A-M Certificates, Class A-MS Certificates,
Class A-J Certificates, Class A-JS Certificates, Class B Certificates,
Class B-S Certificates, Class C Certificates, Class C-S Certificates,
Class D Certificates, Class D-S Certificates, Class E Certificates, Class
E-S Certificates, Class F Certificates, Class F-S Certificates, Class G
Certificates, Class G-S Certificates, Class H Certificates, Class H-S
Certificates and Class J Certificates and the Class A-2SFL Regular
Interest and the Class A-JFL Regular Interest to zero, to the Holders of
the Class K Certificates, an amount equal to the Principal Distribution
Amount (or the portion remaining after distributions on the Class A
Certificates, Class A-S Certificates (other than the Class A-2SFL
Certificates), Class A-M Certificates, Class A-MS Certificates, Class A-J
Certificates, Class A-JS Certificates, Class B Certificates, Class B-S
Certificates, Class C Certificates, Class C-S Certificates, Class D
Certificates, Class D-S Certificates, Class E Certificates, Class E-S
Certificates, Class F Certificates, Class F-S Certificates, Class G
Certificates, Class G-S Certificates, Class H Certificates, Class H-S
Certificates and Class J Certificates and the Class A-2SFL Regular
Interest and the Class A-JFL Regular Interest on such Distribution Date),
until the outstanding Certificate Balance of the Class K Certificates has
been reduced to zero;
(xxxvi) thirty-sixth, to the Holders of the Class K Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class K Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxvii) thirty-seventh, to the Holders of the Class L Certificates,
in respect of interest, up to the aggregate Interest Distribution Amount
in respect of such Class of Certificates for such Distribution Date;
(xxxviii) thirty-eight, following reduction of the Certificate
Balances of the Class A Certificates, Class A-S Certificates (other than
the Class A-2SFL Certificates), Class A-M Certificates, Class A-MS
Certificates, Class A-J Certificates, Class A-JS Certificates, Class B
Certificates, Class B-S Certificates, Class C Certificates, Class C-S
Certificates, Class D Certificates, Class D-S Certificates, Class E
Certificates, Class E-S Certificates, Class F Certificates, Class F-S
Certificates, Class G Certificates, Class G-S Certificates, Class H
Certificates, Class H-S Certificates, Class J Certificates and Class K
Certificates and the Class A-2SFL Regular Interest and the Class A-JFL
Regular Interest to zero, to the Holders of the Class L Certificates, an
amount equal to the Principal Distribution Amount (or the portion
remaining after distributions on the Class A Certificates, Class A-S
Certificates (other than the Class A-2SFL Certificates), Class A-M
Certificates, Class A-MS Certificates, Class A-J Certificates, Class A-JS
Certificates, Class B Certificates, Class B-S Certificates, Class C
Certificates, Class C-S Certificates, Class D Certificates, Class D-S
Certificates, Class E Certificates, Class E-S Certificates, Class F
Certificates, Class F-S Certificates, Class G Certificates, Class G-S
Certificates, Class H Certificates, Class H-S Certificates, Class J
Certificates and Class K Certificates and the Class A-2SFL Regular
Interest and the Class A-JFL Regular Interest on such Distribution Date),
until the outstanding Certificate Balance of the Class L Certificates has
been reduced to zero;
(xxxix) thirty-ninth, to the Holders of the Class L Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class L Certificates, but not previously reimbursed, have been
reimbursed in full;
(xl) fortieth, to the Holders of the Class M Certificates, in
respect of interest, up to the aggregate Interest Distribution Amount in
respect of such Class of Certificates for such Distribution Date;
(xli) forty-first, following reduction of the Certificate Balances
of the Class A Certificates, Class A-S Certificates (other than the Class
A-2SFL Certificates), Class A-M Certificates, Class A-MS Certificates,
Class A-J Certificates, Class A-JS Certificates, Class B Certificates,
Class B-S Certificates, Class C Certificates, Class C-S Certificates,
Class D Certificates, Class D-S Certificates, Class E Certificates, Class
E-S Certificates, Class F Certificates, Class F-S Certificates, Class G
Certificates, Class G-S Certificates, Class H Certificates, Class H-S
Certificates, Class J Certificates, Class K Certificates and Class L
Certificates and the Class A-2SFL Regular Interest and the Class A-JFL
Regular Interest to zero, to the Holders of the Class M Certificates, an
amount equal to the Principal Distribution Amount (or the portion
remaining after distributions on the Class A Certificates, Class A-S
Certificates (other than the Class A-2SFL Certificates), Class A-M
Certificates, Class A-MS Certificates, Class A-J Certificates, Class A-JS
Certificates, Class B Certificates, Class B-S Certificates, Class C
Certificates, Class C-S Certificates, Class D Certificates, Class D-S
Certificates, Class E Certificates, Class E-S Certificates, Class F
Certificates, Class F-S Certificates, Class G Certificates, Class G-S
Certificates, Class H Certificates, Class H-S Certificates, Class J
Certificates, Class K Certificates and Class L Certificates and the Class
A-2SFL Regular Interest and the Class A-JFL Regular Interest on such
Distribution Date), until the outstanding Certificate Balance of the Class
M Certificates has been reduced to zero;
(xlii) forty-second, to the Holders of the Class M Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class M Certificates, but not previously reimbursed, have been
reimbursed in full;
(xliii) forty-third, to the Holders of the Class N Certificates, in
respect of interest, up to the aggregate Interest Distribution Amount in
respect of such Class of Certificates for such Distribution Date;
(xliv) forty-fourth, following reduction of the Certificate Balances
of the Class A Certificates, Class A-S Certificates (other than the Class
A-2SFL Certificates), Class A-M Certificates, Class A-MS Certificates,
Class A-J Certificates, Class A-JS Certificates, Class B Certificates,
Class B-S Certificates, Class C Certificates, Class C-S Certificates,
Class D Certificates, Class D-S Certificates, Class E Certificates, Class
E-S Certificates, Class F Certificates, Class F-S Certificates, Class G
Certificates, Class G-S Certificates, Class H Certificates, Class H-S
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates and Class M Certificates and the Class A-2SFL Regular
Interest and the Class A-JFL Regular Interest to zero, to the Holders of
the Class N Certificates, an amount equal to the Principal Distribution
Amount (or the portion remaining after distributions on the Class A
Certificates, Class A-S Certificates (other than the Class A-2SFL
Certificates), Class A-M Certificates, Class A-MS Certificates, Class A-J
Certificates, Class A-JS Certificates, Class B Certificates, Class B-S
Certificates, Class C Certificates, Class C-S Certificates, Class D
Certificates, Class D-S Certificates, Class E Certificates, Class E-S
Certificates, Class F Certificates, Class F-S Certificates, Class G
Certificates, Class G-S Certificates, Class H Certificates, Class H-S
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates and Class M Certificates and the Class A-2SFL Regular
Interest and the Class A-JFL Regular Interest on such Distribution Date),
until the outstanding Certificate Balance of the Class N Certificates has
been reduced to zero;
(xlv) forty-fifth, to the Holders of the Class N Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class N Certificates, but not previously reimbursed, have been reimbursed
in full;
(xlvi) forty-sixth, to the Holders of the Class P Certificates, in
respect of interest, up to the aggregate Interest Distribution Amount in
respect of such Class of Certificates for such Distribution Date;
(xlvii) forty-seventh, following reduction of the Certificate
Balances of the Class A Certificates, Class A-S Certificates (other than
the Class A-2SFL Certificates), Class A-M Certificates, Class A-MS
Certificates, Class A-J Certificates, Class A-JS Certificates, Class B
Certificates, Class B-S Certificates, Class C Certificates, Class C-S
Certificates, Class D Certificates, Class D-S Certificates, Class E
Certificates, Class E-S Certificates, Class F Certificates, Class F-S
Certificates, Class G Certificates, Class G-S Certificates, Class H
Certificates, Class H-S Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates and Class N
Certificates and the Class A-2SFL Regular Interest and the Class A-JFL
Regular Interest to zero, to the Holders of the Class P Certificates, an
amount equal to the Principal Distribution Amount (or the portion
remaining after distributions on the Class A Certificates, Class A-S
Certificates (other than the Class A-2SFL Certificates), Class A-M
Certificates, Class A-MS Certificates, Class A-J Certificates, Class A-JS
Certificates, Class B Certificates, Class B-S Certificates, Class C
Certificates, Class C-S Certificates, Class D Certificates, Class D-S
Certificates, Class E Certificates, Class E-S Certificates, Class F
Certificates, Class F-S Certificates, Class G Certificates, Class G-S
Certificates, Class H Certificates, Class H-S Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M
Certificates and Class N Certificates and the Class A-2SFL Regular
Interest and the Class A-JFL Regular Interest on such Distribution Date),
until the outstanding Certificate Balance of the Class P Certificates has
been reduced to zero;
(xlviii) forty-eight, to the Holders of the Class P Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class P Certificates, but not previously reimbursed, have been
reimbursed in full;
(xlix) forty-ninth, to the Holders of the Class NR Certificates, in
respect of interest, up to the aggregate Interest Distribution Amount in
respect of such Class of Certificates for such Distribution Date;
(l) fiftieth, following reduction of the Certificate Balances of the
Class A Certificates, Class A-S Certificates (other than the Class A-2SFL
Certificates), Class A-M Certificates, Class A-MS Certificates, Class A-J
Certificates, Class A-JS Certificates, Class B Certificates, Class B-S
Certificates, Class C Certificates, Class C-S Certificates, Class D
Certificates, Class D-S Certificates, Class E Certificates, Class E-S
Certificates, Class F Certificates, Class F-S Certificates, Class G
Certificates, Class G-S Certificates, Class H Certificates, Class H-S
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates, Class N Certificates and Class P
Certificates and the Class A-2SFL Regular Interest and the Class A-JFL
Regular Interest to zero, to the Holders of the Class NR Certificates, an
amount equal to the Principal Distribution Amount (or the portion
remaining after distributions on the Class A Certificates, Class A-S
Certificates (other than the Class A-2SFL Certificates), Class A-M
Certificates, Class A-MS Certificates, Class A-J Certificates, Class A-JS
Certificates, Class B Certificates, Class B-S Certificates, Class C
Certificates, Class C-S Certificates, Class D Certificates, Class D-S
Certificates, Class E Certificates, Class E-S Certificates, Class F
Certificates, Class F-S Certificates, Class G Certificates, Class G-S
Certificates, Class H Certificates, Class H-S Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M
Certificates, Class N Certificates and Class P Certificates and the Class
A-2SFL Regular Interest and the Class A-JFL Regular Interest on such
Distribution Date), until the outstanding Certificate Balance of the Class
NR Certificates has been reduced to zero;
(li) fifty-first, to the Holders of the Class NR Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class NR Certificates, but not previously reimbursed, have been reimbursed
in full; and
(lii) fifty-second, to Holders of the Class R Certificates, the
amount, if any, of the Available Distribution Amount remaining in the
Upper-Tier Distribution Account, to the Holders of the Class MR
Certificates, the amount, if any, of the Available Distribution Amount
remaining in the Middle-Tier Distribution Account and to the Holders of
the Class LR Certificates, the amount remaining in the Lower-Tier
Distribution Account with respect to that Distribution Date.
If, in connection with any Distribution Date, the Trustee has
reported the amount of an anticipated distribution to DTC based on the receipt
of payments as of the Determination Date and additional Monthly Payments,
balloon payments or unscheduled principal payments are subsequently received by
any Master Servicer and required to be part of the Available Distribution Amount
for such Distribution Date, such Master Servicer shall promptly notify the
Trustee and the Trustee will use commercially reasonable efforts to cause DTC to
make the revised distribution on a timely basis on such Distribution Date. None
of the Master Servicers, the Special Servicer or the Trustee shall be liable or
held responsible for any resulting delay in the making of such distribution to
Certificateholders solely on the basis of the actions described in the preceding
sentence.
(b) On each Distribution Date, each Uncertificated Lower-Tier
Interest shall be deemed to receive distributions in respect of principal or
reimbursement of a Collateral Support Deficit: (i) first, to the Class L-RB
Interest and Class L-SB Interest, so that their respective Lower-Tier Principal
Amounts (computed to at least eight decimal places) are equal to (A) 0.001% of
the Group Subordinate Amount of Loan Group R and (B) 0.001% of the Group
Subordinate Amount of Loan Group S, respectively (except that if any such amount
is a larger number than in the preceding distribution period, the least amount
of principal shall be distributed or losses shall be allocated to the Class L-RB
Interest and Class L-SB Interest, as applicable, such that the Lower-Tier
Subordinate Balance Ratio is maintained) and (ii) second, any remaining amounts
of principal shall be distributed and losses shall be allocated from the related
Loan Group, to the Class L-RQ Interest and Class L-SQ Interest, respectively.
On each Distribution Date, each Uncertificated Lower-Tier
Interest shall be deemed to receive distributions in respect of interest from
the related Loan Group at the related interest rate for such Uncertificated
Lower-Tier Interest. Such amounts distributed to the Uncertificated Lower-Tier
Interests in respect of principal and interest with respect to any Distribution
Date are referred to herein collectively as the "Lower-Tier Regular Distribution
Amount," and shall be made by the Trustee by deeming such Lower-Tier Regular
Distribution Amount to be withdrawn from the Lower-Tier REMIC to be deposited in
the Middle-Tier Distribution Account.
The initial principal balance of each Uncertificated Lower-Tier
Interest equals the respective Original Lower-Tier Principal Amount. The
interest rate with respect to each Uncertificated Lower-Tier Interest will be
the rate per annum set forth in the Preliminary Statement hereto.
Any amount that remains in the Lower-Tier Distribution Account on
each Distribution Date after distribution of the Lower-Tier Regular Distribution
Amount and distribution of Yield Maintenance Charges pursuant to Section
4.01(d)(iii) shall be distributed to the Holders of the Class LR Certificates
(but only to the extent of the Available Distribution Amount for such
Distribution Date remaining in the Lower-Tier Distribution Account, if any).
On each Distribution Date, each Uncertificated Middle-Tier Interest
shall be deemed to receive distributions in respect of principal or
reimbursement of Collateral Support Deficit in an amount equal to the amount of
principal or reimbursement of Collateral Support Deficit actually distributable
to its respective Related Certificates as provided in Sections 4.01(a), 4.01(c)
and 4.01(d). On each Distribution Date, each Uncertificated Middle-Tier Interest
shall be deemed to receive distributions in respect of interest in an amount
equal to the Interest Distribution Amount in respect of its Related Certificates
and its related Component of the Class X Certificates, in each case to the
extent actually distributable thereon as provided in Section 4.01(a). For this
purpose, interest distributed on the Class X Certificates shall be treated as
having been paid to its Components pro rata, based on the interest accrued with
respect thereto at its Class X Strip Rate. Such amounts distributed to the
Uncertificated Middle-Tier Interests in respect of principal and interest with
respect to any Distribution Date are referred to herein collectively as the
"Middle-Tier Regular Distribution Amount," and shall be made by the Trustee by
deeming such Middle-Tier Regular Distribution Amount to be withdrawn from the
Middle-Tier REMIC and deposited in the Upper-Tier Distribution Account.
As of any date, the principal balance of each Uncertificated
Middle-Tier Interest equals the Certificate Balance of the Related Certificates
with respect thereto, as adjusted for the allocation of Collateral Support
Deficits, as provided in Sections 4.04(b) and 4.04(c) and of Certificate
Deferred Interest as provided in Section 4.06. The initial principal balance of
each Uncertificated Middle-Tier Interest equals the respective Original
Middle-Tier Principal Amount. The pass-through rate with respect to each
Uncertificated Middle-Tier Interest will be the rate per annum set forth in the
Preliminary Statement hereto.
Any amount that remains in the Middle-Tier Distribution Account on
each Distribution Date after distribution of the Middle-Tier Regular
Distribution Amount and distribution of Yield Maintenance Charges pursuant to
Section 4.01(d)(iii) shall be distributed to the Holders of the Class MR
Certificates (but only to the extent of the Available Distribution Amount for
such Distribution Date remaining in the Middle-Tier Distribution Account, if
any).
(c) Notwithstanding the priorities set forth in clause (a) above, on
and after the Distribution Date on which the Certificate Balances of the
Subordinate Certificates (other than the Class A-JFL Certificates) and the Class
A-JFL Regular Interest have all been reduced to zero, the Principal Distribution
Amount will be distributed, pro rata, among the Class A-1, Class A-1S, Class
A-2, Class A-2S, Class A-3, Class A-3S and Class A-1A Certificates and the Class
A-2SFL Regular Interest without regard to Loan Group, based on their respective
Certificate Balances immediately prior to such Distribution Date, in reduction
of their respective Certificate Balances, until the Certificate Balance of each
such Class is reduced to zero, and any amounts representing reimbursements of
Collateral Support Deficits previously allocated to such Classes, if available,
will be distributed pro rata based on their respective Certificate Balances,
without regard to Loan Group.
(d) (i) (x) On each Distribution Date, Yield Maintenance Charges
collected during the related Due Period collected in respect of Mortgage Loans
in Loan Group S will be distributed by the Trustee to the following Classes: to
the Class A-1S, Class A-2S, Class A-3S, Class A-MS, Class A-JS, Class B-S, Class
C-S, Class D-S, Class E-S, Class F-S, Class G-S, Class H-S Certificates and the
Class A-2SFL Regular Interest on each Distribution Date, in an amount equal to
the product of (a) a fraction whose numerator is the amount distributed as
principal to such Class on such Distribution Date, and whose denominator is the
total amount distributed as principal to all of the Group S Certificates on such
Distribution Date, (b) the Base Interest Fraction for the related principal
payment on such Class of Certificates or the Class A-2SFL Regular Interest, and
(c) the aggregate amount of Yield Maintenance Charges collected on such
principal prepayments during the related Due Period. If more than one such Class
of Certificates is entitled to distributions of principal with respect to the
related Loan Group on any particular Distribution Date on which Yield
Maintenance Charges are distributable, the aggregate amount of such Yield
Maintenance Charges will be allocated among all such Classes up to, and on a pro
rata basis in accordance with, their respective entitlements thereto in
accordance with this Section 4.01(d)(i). Any Yield Maintenance Charge collected
during the related Due Period with respect to the Mortgage Loans in Loan Group S
remaining after such distributions will be distributed to the holders of the
Class X Certificates. Notwithstanding the foregoing, any prepayment penalties
collected that are based on a percentage of the amount being prepaid will be
distributed to the Class X Certificates.
(y) On each Distribution Date, Yield Maintenance Charges collected
during the related Due Period collected in respect of Mortgage Loans in Loan
Group R-1 will be distributed by the Trustee to the following Classes: to the
Class A-1, Class A-2, Class A-3, Class A-M, Class A-J, Class B, Class C, Class
D, Class E, Class F, Class G and Class H Certificates and the Class A-JFL
Regular Interest with respect to the related Loan Group on each Distribution
Date, in an amount equal to the product of (a) a fraction whose numerator is the
amount distributed as principal to such Class on such Distribution Date, and
whose denominator is the total amount distributed as principal to the Group R-1
Certificates on such Distribution Date, (b) the Base Interest Fraction for the
related principal payment on such Class of Certificates, and (c) the aggregate
amount of Yield Maintenance Charges collected on such principal prepayments
during the related Due Period with respect to Mortgage Loans in Loan Group R-1.
If more than one such Class of Certificates is entitled to distributions of
principal with respect to the related Loan Group on any particular Distribution
Date on which Yield Maintenance Charges are distributable, the aggregate amount
of such Yield Maintenance Charges will be allocated among all such Classes up
to, and on a pro rata basis in accordance with, their respective entitlements
thereto in accordance with this Section 4.01(d)(i). Any Yield Maintenance Charge
collected during the related Due Period remaining after such distributions will
be distributed to the holders of the Class X Certificates. Notwithstanding the
foregoing, any prepayment penalties collected that are based on a percentage of
the amount being prepaid will be distributed to the Class X Certificates.
(z) On each Distribution Date, Yield Maintenance Charges collected
during the related Due Period collected in respect of Mortgage Loans in Loan
Group R-2 will be distributed by the Trustee to the Class A-1A Certificates with
respect to the related Loan Group on each Distribution Date, in an amount equal
to the product of (a) a fraction whose numerator is the amount distributed as
principal to such Class on such Distribution Date, and whose denominator is the
total amount distributed as principal to the Group R-2 Certificates on such
Distribution Date, (b) the Base Interest Fraction for the related principal
payment on such Class of Certificates, and (c) the aggregate amount of Yield
Maintenance Charges collected on such principal prepayments during the related
Due Period with respect to Mortgage Loans in Loan Group R-2. Any Yield
Maintenance Charge collected during the related Due Period remaining after such
distributions will be distributed to the holders of the Class X Certificates.
Notwithstanding the foregoing, any prepayment penalties collected that are based
on a percentage of the amount being prepaid will be distributed to the Class X
Certificates.
(ii) No Yield Maintenance Charge will be distributed to the holders
of the Class J, Class K, Class L, Class M, Class N, Class P, Class NR
Class S or Residual Certificates. After the Certificate Balances of the
Class A-1, Class A-1S, Class A-2, Class A-2S, Class A-3, Class A-3S, Class
A-1A, Class A-M, Class A-MS, Class A-J, Class A-JS, Class B, Class B-S,
Class C, Class C-S, Class D, Class D-S, Class E, Class E-S, Class F, Class
F-S, Class G, Class G-S, Class H, Class H-S Certificates and the Class
A-2SFL and Class A-JFL Regular Interests have been reduced to zero, all
Yield Maintenance Charges with respect to the Mortgage Loans shall be
distributed to the holders of the Class X Certificates.
(iii) All distributions of Yield Maintenance Charges made in respect
of the respective Classes of Regular Certificates and the Class A-2SFL and
Class A-JFL Regular Interests on each Distribution Date pursuant to
Section 4.01(d)(i) shall first be deemed to be distributed from the
Lower-Tier REMIC to the Middle-Tier REMIC in respect of the Uncertificated
Lower-Tier Interests, pro rata, and from the Middle-Tier REMIC to the
Upper-Tier REMIC in respect of the Uncertificated Middle-Tier Interests,
pro rata, based upon the amount of principal distributed in respect of
each such Class of Uncertificated Lower-Tier Interests or Uncertificated
Middle-Tier Interests, as applicable, for such Distribution Date pursuant
to Section 4.01(b) above.
(iv) Any distributions of Yield Maintenance Charges in respect of
the Class A-2SFL Regular Interest shall be distributed to the Holders of
the Class A-2SFL Certificates or to the related Swap Counterparty as
specified in Section 4.01(j). Any distributions of Yield Maintenance
Charges in respect of the Class A-JFL Regular Interest shall be
distributed to the Holders of the Class A-JFL Certificates or to the
related Swap Counterparty as specified in Section 4.01(k).
(e) On each Distribution Date, the Trustee shall withdraw amounts
from the Gain-on-Sale Reserve Account and shall distribute such amounts to
reimburse the Holders of the Regular Certificates (other than the Class A-2SFL
Certificates and the Class A-JFL Certificates) and the Class A-2SFL and Class
A-JFL Regular Interests (in order of distribution priority) (first deeming such
amounts to be distributed with respect to the Uncertificated Lower-Tier
Interests in proportion to unreimbursed Collateral Support Deficits incurred on
such Classes), then distributed with respect to the related Uncertificated
Middle-Tier Interests up to an amount equal to all Collateral Support Deficits,
if any, previously deemed allocated to them and unreimbursed after application
of the Available Distribution Amount for such Distribution Date. Amounts paid
from the Gain-on-Sale Reserve Account will not reduce the Certificate Balances
of the Classes of Certificates or the Class A-2SFL or Class A-JFL Regular
Interests receiving such distributions. Any amounts remaining in the
Gain-on-Sale Reserve Account after such distributions shall be applied to offset
future Collateral Support Deficits and related Collateral Support Deficits and
upon termination of the Trust Fund, any amounts remaining in the Gain-on-Sale
Reserve Account shall be distributed to the Class LR Certificateholders.
(f) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Except as otherwise specifically provided in Sections 4.01(g),
4.01(h) and 9.01, all such distributions with respect to each Class on each
Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent Distribution Dates), or otherwise by check mailed to such
Certificateholder at its address in the Certificate Registrar. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of Collateral Support Deficit previously allocated to such
Certificate) will be made in like manner, but only upon presentation and
surrender of such Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such final
distribution.
Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Co-Trustee, the Certificate Registrar, the Depositor, the Master Servicers, the
Special Servicer or the Underwriters shall have any responsibility therefor
except as otherwise provided by this Agreement or applicable law.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any amount of Collateral Support Deficit previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Trustee shall, no
later than the related P&I Advance Determination Date, mail to each Holder on
such date of such Class of Certificates a notice to the effect that:
(i) the Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only
upon presentation and surrender of such Certificates at the offices of the
Certificate Registrar or such other location therein specified; and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(g).
(h) Distributions in reimbursement of Collateral Support Deficit
previously allocated to the Regular Certificates (other than the Class A-2SFL
and the Class A-JFL Certificates) or the Class A-2SFL and the Class A-JFL
Regular Interests shall be made in the amounts and manner specified in Section
4.01(a) or Section 4.01(e), as applicable, to the Holders of the respective
Class otherwise entitled to distributions of interest and principal on such
Class on the relevant Distribution Date; provided that all distributions in
reimbursement of Collateral Support Deficit previously allocated to a Class of
Certificates which has since been retired shall be to the prior Holders that
surrendered the Certificates of such Class upon retirement thereof and shall be
made by check mailed to the address of each such prior Holder last shown in the
Certificate Register. Notice of any such distribution to a prior Holder shall be
made in accordance with Section 12.05 at such last address. The amount of the
distribution to each such prior Holder shall be based upon the aggregate
Percentage Interest evidenced by the Certificates surrendered thereby. If the
check mailed to any such prior Holder is returned uncashed, then the amount
thereof shall be set aside and held uninvested in trust for the benefit of such
prior Holder, and the Trustee shall attempt to contact such prior Holder in the
manner contemplated by Section 4.01(g) as if such Holder had failed to surrender
its Certificates.
(i) On the date as specified in the related Intercreditor Agreement,
with respect to the Companion Loans, each Companion Paying Agent shall make
withdrawals and payments from its Companion Distribution Account for each
Companion Loan in the following order of priority:
(i) to pay the Trustee or the Co-Trustee or any of their directors,
officers, employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05, to the extent
any such amounts relate solely to the Serviced Whole Loan related to such
Companion Loan, and such amounts are to be paid by the related Companion
Holder pursuant to the related Intercreditor Agreement;
(ii) to pay to the applicable Master Servicer any amounts deposited
by such Master Servicer in the Companion Distribution Account not required
to be deposited therein;
(iii) to pay all amounts remaining in the Companion Distribution
Account related to such Companion Loan to the related Companion Holder, in
accordance with the related Intercreditor Agreement; and
(iv) to clear and terminate the Companion Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
All distributions from the Companion Distribution Accounts required
hereunder shall be made by the applicable Companion Paying Agent to the
Companion Holder by wire transfer in immediately available funds to the account
of such Companion Holder or an agent therefor appearing on the Companion
Register on the related Record Date (or, if no such account so appears or
information relating thereto is not provided at least five Business Days prior
to the related Record Date, by check sent by first-class mail to the address of
such Companion Holder or its agent appearing on the Companion Register). Any
such account shall be located at a commercial bank in the United States.
(j) (i) On each Distribution Date, for so long as the Certificate
Balance of the Class A-2SFL Regular Interest (and correspondingly, the Class
A-2SFL Certificates) has not been reduced to zero, to the extent of the Class
A-2SFL Available Funds for such Distribution Date, after remitting any Class
A-2SFL Net Swap Payment to the Swap Counterparty pursuant to Section 3.31(c),
the Trustee shall make distributions from the related Floating Rate Account in
the following order of priority, satisfying in full, to the extent required and
possible, each priority before making any distribution with respect to any
succeeding priority:
(A) first, to the Holders of the Class A-2SFL Certificates, in
respect of interest, up to an amount equal to the sum of (i) the
Class A-2SFL Interest Distribution Amount for such Distribution Date
and (ii) an amount equal to any Accrued Interest From Recoveries
relating to the Class A-2SFL Regular Interest;
(B) second, to the Holders of the Class A-2SFL Certificates,
in reduction of the Certificate Balances thereof, an amount equal to
the Class A-2SFL Principal Distribution Amount, until the
outstanding Certificate Balance thereof has been reduced to zero;
(C) third, to the Holders of the Class A-2SFL Certificates,
until all amounts of Collateral Support Deficit previously allocated
to the Class A-2SFL Certificates (as a result of the allocation of
Collateral Support Deficit to the Class A-2SFL Regular Interest) but
not previously reimbursed, has been reimbursed in full;
(D) fourth, to pay (1) any costs and expenses related to the
related Swap Contract and (2) any termination payments to the
related Swap Counterparty, in that order and solely to the extent
provided herein, including Section 4.01(j)(iii); and
(E) fifth, any remaining amount to the Holders of the Class
A-2SFL Certificates.
(ii) So long as a Class A-2SFL Distribution Conversion is not in
effect, any Yield Maintenance Charges paid on the Class A-2SFL Regular
Interest shall be payable to the related Swap Counterparty pursuant to the
terms of the related Swap Contract on a net basis as part of the Class
A-2SFL Net Swap Payment as specified in Section 3.31. On each Distribution
Date for which a Class A-2SFL Distribution Conversion is in effect, any
Yield Maintenance Charges paid on the Class A-2SFL Regular Interest shall
be distributed to the Holders of the Class A-2SFL Certificates.
(iii) Any termination payments due to the related Swap Counterparty
under the related Swap Contract shall be payable solely from amounts, if
any, remaining in the related Floating Rate Account after all other
amounts have been paid under the Class A-2SFL Certificates (including all
principal and interest amounts outstanding and reimbursement of any
Collateral Support Deficit).
(k) (i) On each Distribution Date, for so long as the Certificate
Balance of the Class A-JFL Regular Interest (and correspondingly, the Class
A-JFL Certificates) has not been reduced to zero, to the extent of the Class
A-JFL Available Funds for such Distribution Date, after remitting any Class
A-JFL Net Swap Payment to the Swap Counterparty pursuant to Section 3.31(c), the
Trustee shall make distributions from the Floating Rate Account in the following
order of priority, satisfying in full, to the extent required and possible, each
priority before making any distribution with respect to any succeeding priority:
(A) first, to the Holders of the Class A-JFL Certificates, in
respect of interest, up to an amount equal to the sum of (i) the
Class A-JFL Interest Distribution Amount for such Distribution Date
and (ii) an amount equal to any Accrued Interest From Recoveries
relating to the Class A-JFL Regular Interest;
(B) second, to the Holders of the Class A-JFL Certificates, in
reduction of the Certificate Balances thereof, an amount equal to
the Class A-JFL Principal Distribution Amount, until the outstanding
Certificate Balance thereof has been reduced to zero;
(C) third, to the Holders of the Class A-JFL Certificates,
until all amounts of Collateral Support Deficit previously allocated
to the Class A-JFL Certificates (as a result of the allocation of
Collateral Support Deficit to the Class A-JFL Regular Interest) but
not previously reimbursed, has been reimbursed in full;
(D) fourth, to pay (1) any costs and expenses related to the
related Swap Contract and (2) any termination payments to the
related Swap Counterparty, in that order and solely to the extent
provided herein, including Section 4.01(k)(iii); and
(E) fifth, any remaining amount to the Holders of the Class
A-JFL Certificates.
(ii) So long as a Class A-JFL Distribution Conversion is not in
effect, any Yield Maintenance Charges paid on the Class A-JFL Regular
Interest shall be payable to the related Swap Counterparty pursuant to the
terms of the related Swap Contract on a net basis as part of the Class
A-JFL Net Swap Payment as specified in Section 3.31. On each Distribution
Date for which a Class A-JFL Distribution Conversion is in effect, any
Yield Maintenance Charges paid on the Class A-JFL Regular Interest shall
be distributed to the Holders of the Class A-JFL Certificates.
(iii) Any termination payments due to the related Swap Counterparty
under the related Swap Contract shall be payable solely from amounts, if
any, remaining in the related Floating Rate Account after all other
amounts have been paid under the Class A-JFL Certificates (including all
principal and interest amounts outstanding and reimbursement of any
Collateral Support Deficit).
(l) On each Distribution Date, any Excess Interest received during
the related Due Period with respect to the Mortgage Loans shall be distributed
to the holders of the Class S Certificates from the Excess Interest Distribution
Account.
Section 4.02 Statements to Certificateholders; CMSA Investor
Reporting Package (IRP)s. (a) On each Distribution Date, the Trustee shall make
available to the general public a statement (substantially in the form set forth
as Exhibit G hereto and based on the information supplied to the Trustee in the
related CMSA Investor Reporting Package (IRP) in accordance with CMSA
guidelines) as to the distributions made on such Distribution Date (each, a
"Statement to Certificateholders") which shall include:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates in reduction of the Certificate
Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates allocable to Distributable
Certificate Interest, with respect to the Class A-2SFL Certificates and
the Class A-JFL Certificates, notification that the amount of interest
distributed thereon is equal to the Interest Distribution Amount with
respect to the Classes of Regular Interests, which is being paid as a
result of a Class A-2SFL Distribution Conversion and Class A-JFL
Distribution Conversion, respectively;
(iii) (A) the aggregate amount of Advances made, with respect to the
pool of Mortgage Loans and with respect to each Loan Group, during the
period from but not including the previous Distribution Date to and
including such Distribution Date and details of such Advances, in each
case, on a loan-by-loan basis as of the P&I Advance Date and (B) the
aggregate amount of all Nonrecoverable Advances on a loan-by-loan basis as
of the P&I Advance Date;
(iv) the aggregate amount of compensation paid to the Trustee and
the Co-Trustee and servicing compensation paid to the Master Servicers and
the Special Servicer with respect to the Due Period for such Distribution
Date together with detailed calculations of servicing compensation paid to
the Master Servicers and Special Servicer;
(v) the aggregate Stated Principal Balance of the Mortgage Loans and
any REO Loans, with respect to the pool of Mortgage Loans and with respect
to each Loan Group, outstanding immediately before and immediately after
such Distribution Date;
(vi) the number of loans, their aggregate principal balance,
weighted average remaining term to maturity and weighted average Mortgage
Rate of the Mortgage Loans, with respect to the pool of Mortgage Loans and
with respect to each Loan Group, as of the end of the related Due Period
for such Distribution Date;
(vii) the number and aggregate principal balance of Mortgage Loans
(A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90
days or more, (D) current but specially serviced or in foreclosure but not
REO Property and (E) for which the related Mortgagor is subject to
oversight by a bankruptcy court;
(viii) the value of any REO Property included in the Trust Fund as
of the end of the related Determination Date for such Distribution Date,
based on the most recent Appraisal or valuation;
(ix) the Available Distribution Amount for such Distribution Date;
(x) the Accrued Certificate Interest in respect of such Class of
Certificates for such Distribution Date, separately identifying any
Certificate Deferred Interest for such Distribution Date allocated to such
Class of Certificates;
(xi) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to (A) Yield Maintenance
Charges and (B) Excess Interest;
(xii) the Pass-Through Rate for such Class of Certificates for such
Distribution Date and the next succeeding Distribution Date;
(xiii) the Scheduled Principal Distribution Amount and the
Unscheduled Principal Distribution Amount for such Distribution Date, with
respect to the pool of Mortgage Loans and with respect to each Loan Group;
(xiv) the Certificate Balance or Notional Amount, as the case may
be, of each Class of Certificates immediately before and immediately after
such Distribution Date, separately identifying any reduction therein as a
result of the allocation of any Collateral Support Deficit on such
Distribution Date and the aggregate amount of all reductions as a result
of allocations of Collateral Support Deficits to date;
(xv) the Certificate Factor for each Class of Regular Certificates
immediately following such Distribution Date;
(xvi) the amount of any Appraisal Reductions effected in connection
with such Distribution Date on a loan-by-loan basis and the total
Appraisal Reduction effected in connection with such Distribution Date,
together with a detailed worksheet showing the calculation of each
Appraisal Reduction on a current and cumulative basis;
(xvii) the number and related Stated Principal Balance of any
Mortgage Loans extended or modified since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date) on
a loan-by-loan basis;
(xviii) the amount of any remaining Class Unpaid Interest Shortfall
for such Class as of such Distribution Date;
(xix) a loan-by-loan listing of each Mortgage Loan which was the
subject of a Principal Prepayment since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date)
and the amount and the type of Principal Prepayment occurring;
(xx) a loan-by-loan listing of each Mortgage Loan which was defeased
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxi) all deposits into, withdrawals from, and the balance of the
Interest Reserve Account on the P&I Advance Date;
(xxii) in the case of the Residual Certificates, the amount of any
distributions on such Certificates pursuant to Sections 4.01(a), (b) and
(d);
(xxiii) the amount of the distribution on such Distribution Date to
the Holders of such Class of Certificates in reimbursement of previously
allocated Collateral Support Deficit;
(xxiv) the aggregate unpaid principal balance of the Mortgage Loans
outstanding as of the close of business on the related Determination Date,
with respect to the pool of Mortgage Loans and with respect to each Loan
Group;
(xxv) with respect to any Mortgage Loan as to which a Liquidation
Event occurred since the previous Determination Date (or in the case of
the first Distribution Date, as of the Cut-off Date) or prior to the
related Determination Date (other than a payment in full), (A) the loan
number thereof, (B) the aggregate of all Liquidation Proceeds and other
amounts received in connection with such Liquidation Event (separately
identifying the portion thereof allocable to distributions on the
Certificates), and (C) the amount of any Collateral Support Deficit in
connection with such Liquidation Event;
(xxvi) with respect to any REO Property included in the Trust Fund
as to which a Final Recovery Determination was made during the related Due
Period or prior to the Determination Date, (A) the loan number of the
related Mortgage Loan, (B) the aggregate of all Liquidation Proceeds and
other amounts received in connection with such Final Recovery
Determination (separately identifying the portion thereof allocable to
distributions on the Certificates), and (C) the amount of any Collateral
Support Deficit in respect of the related REO Loan in connection with such
Final Recovery Determination;
(xxvii) the aggregate amount of interest on P&I Advances paid to
each Master Servicer and the Co-Trustee since the previous Determination
Date (or in the case of the first Distribution Date, as of the Cut-off
Date), with respect to the pool of Mortgage Loans and with respect to each
Loan Group;
(xxviii) the aggregate amount of interest on Servicing Advances paid
to each Master Servicer and the Co-Trustee since the previous
Determination Date (or in the case of the first Distribution Date, as of
the Cut-off Date);
(xxix) the original and then current credit support levels for each
Class of Certificates;
(xxx) the original and then current ratings for each Class of
Regular Certificates;
(xxxi) the amount of the distribution on the Distribution Date to
the Holders of the Residual Certificates;
(xxxii) the aggregate amount of Yield Maintenance Charges collected
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxxiii) LIBOR as calculated for the related Distribution Date and
the next succeeding Distribution Date;
(xxxiv) the amounts received and paid in respect of the Swap
Contract;
(xxxv) identification of any Rating Agency Trigger Event or Swap
Default as of the close of business on the last day of the immediately
preceding calendar month with respect to the Swap Contract;
(xxxvi) the amount of any (A) payment by the Swap Counterparty as a
termination payment, (B) payments in connection with the acquisition of a
replacement interest rate swap contract, and (C) collateral posted in
connection with any Rating Agency Trigger Event;
(xxxvii) the amount of, and identification of, any payments on the
Class A-2SFL Certificates and the Class A-JFL Certificates in addition to
the amount of principal and interest due thereon (including without
limitation, any termination payment received in connection with the Swap
Contract);
(xxxviii) a loan-by-loan listing of any material modification,
extension or waiver of a Mortgage Loan; and
(xxxix) a loan-by-loan listing of any material breach of the
representations and warranties given with respect to a Mortgage Loan by
the applicable Mortgage Loan Seller.
In the case of information furnished pursuant to clauses (i), (ii),
(x), (xi), (xxxiv) and (xxxvii) above, the amounts shall be expressed as a
dollar amount in the aggregate for all Certificates of each applicable Class and
per Definitive Certificate.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a Certificate, a statement containing the
information set forth in clauses (i), (ii) and (xi) above as to the applicable
Class, aggregated for such calendar year or applicable portion thereof during
which such person was a Certificateholder, together with such other information
as the Trustee deems necessary or desirable, or that a Certificateholder or
Certificate Owner reasonably requests, to enable Certificateholders to prepare
their tax returns for such calendar year. Such obligation of the Trustee shall
be deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of the
Code as from time to time are in force.
On each Distribution Date, the Trustee shall make available to the
general public via its website initially located at "xxx.xxxxxxx.xxx" (i) the
related Statement to Certificateholders, (ii) the CMSA Loan Periodic Update
File, the CMSA Loan Setup File, the CMSA Bond Level File, the CMSA Collateral
Summary File, the CMSA Property File and (iii) as a convenience to the general
public (and not in furtherance of the distribution thereof under the securities
laws), the prospectus supplement, the prospectus, and this Agreement. In
addition, if the Depositor so directs the Trustee, and on terms acceptable to
the Trustee, the Trustee shall make certain other information and reports
related to the Mortgage Loans available through its internet website.
In addition, on each Distribution Date, the Trustee shall make
available, to any Privileged Person via its website, each of the "surveillance
reports" identified as such in the definition of "CMSA Investor Reporting
Package" and the CMSA Operating Statement Analysis Report and CMSA NOI Adjusted
Worksheets and seven CMSA data files, the Realized Loss Report and the CMSA
Advance Recovery Report to the extent delivered by each Master Servicer pursuant
to this Agreement.
The Trustee makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on its Internet website and assumes no responsibility therefor. In
addition, the Trustee may disclaim responsibility for any information
distributed by it for which it is not the original source.
In connection with providing access to the Trustee's Internet
website, the Trustee may require registration and the acceptance of a
disclaimer. The Trustee shall not be liable for the dissemination of information
in accordance herewith. Questions regarding the Trustee's Internet website can
be directed to the Trustee's CMBS customer service desk at (000) 000-0000.
Each of the Master Servicer and the Special Servicer may, at its
sole cost and expense, make available by electronic media, bulletin board
service or Internet website (in addition to making information available as
provided herein) any reports or other information such Master Servicer or the
Special Servicer, as applicable, is required or permitted to provide to any
party to this Agreement, the Rating Agencies or any Certificateholder or
prospective Certificateholder (which may be a licensed or registered investment
advisor) to the extent such action does not conflict with the terms of this
Agreement, the terms of the Mortgage Loans or applicable law. In connection with
providing access to such Master Servicer's or the Special Servicer's Internet
website, such Master Servicer or the Special Servicer, as applicable, shall take
reasonable measures to ensure that only such parties listed above may access
such information including, without limitation, requiring registration, a
confidentiality agreement and acceptance of a disclaimer. Each Master Servicer
or the Special Servicer, as applicable, shall not be liable for dissemination of
this information in accordance with this Agreement, provided that such
information otherwise meets the requirements set forth herein with respect to
the form and substance of such information or reports. Each Master Servicer or
the Special Servicer, as applicable, shall be entitled to attach to any report
provided pursuant to this subsection, any reasonable disclaimer with respect to
information provided, or any assumptions required to be made by such report.
Notwithstanding anything herein to the contrary, each Master Servicer or the
Special Servicer may, at its sole cost and expense, make available by electronic
media, bulletin board service or Internet website any reports or other
information such Master Servicer or the Special Servicer, as applicable, is
required or permitted to provide to any Mortgagor with respect to such
Mortgagor's Mortgage Loan to the extent such action does not conflict with the
terms of this Agreement, the terms of the Mortgage Loans or applicable law.
(b) The Special Servicer shall from time to time (and, in any event,
as may be reasonably required by the applicable Master Servicer) provide the
applicable Master Servicer with such information in its possession regarding the
Specially Serviced Mortgage Loans and REO Properties as may be necessary for
such Master Servicer to prepare each report and any supplemental information to
be provided by such Master Servicer to the Trustee. Neither the Trustee nor the
Depositor shall have any obligation to recompute, verify or recalculate the
information provided thereto by such Master Servicer. Unless the Trustee has
actual knowledge that any report or file received from the applicable Master
Servicer contains erroneous information, the Trustee is authorized to rely
thereon in calculating and making distributions to Certificateholders in
accordance with Section 4.01, preparing the statements to Certificateholders
required by Section 4.02(a) and allocating Collateral Support Deficit to the
Certificates in accordance with Section 4.04.
Notwithstanding the foregoing, the failure of any Master Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 4.02(b) or Section 4.02(c) shall not constitute a
breach of this Section 4.02(b) or of Section 4.02(c) to the extent such Master
Servicer or the Special Servicer so fails because such disclosure, in the
reasonable belief of such Master Servicer or the Special Servicer, as the case
may be, would violate any applicable law or any provision of a Mortgage Loan
document prohibiting disclosure of information with respect to the Mortgage
Loans or the Mortgaged Properties. Each Master Servicer or the Special Servicer
may affix to any information provided by it any disclaimer it deems appropriate
in its reasonable discretion (without suggesting liability on the part of any
other party hereto).
(c) As soon as reasonably practicable, upon the written request of
and at the expense of any Certificateholder, the Trustee shall provide the
requesting Certificateholder with such information that is in the Trustee's
possession or can reasonably be obtained by the Trustee as is requested by such
Certificateholder, for purposes of satisfying applicable reporting requirements
under Rule 144A under the Securities Act. Neither the Certificate Registrar nor
the Trustee shall have any responsibility for the sufficiency under Rule 144A or
any other securities laws of any available information so furnished to any
person including any prospective purchaser of a Certificate or any interest
therein, nor for the content or accuracy of any information so furnished which
was prepared or delivered to them by another.
(d) The information to which any Certificateholder is entitled is
limited to the information gathered and provided to the Certificateholder by the
parties hereto pursuant to this Agreement and by acceptance of any Certificate,
each Certificateholder agrees that except as specifically provided herein, no
Certificateholder shall contact any Mortgagor directly with respect to any
Mortgage Loan.
Section 4.03 P&I Advances. (a) On or before 4:00 p.m., New York City
time, on each P&I Advance Date, the applicable Master Servicer shall either (i)
remit to the Trustee for deposit into the Lower-Tier Distribution Account from
its own funds an amount equal to the aggregate amount of P&I Advances, if any,
to be made in respect of the related Distribution Date, (ii) apply amounts held
in its Certificate Account, for future distribution to Certificateholders in
subsequent months in discharge of any such obligation to make P&I Advances or
(iii) make P&I Advances in the form of any combination of (i) and (ii)
aggregating the total amount of P&I Advances to be made. Any amounts held in the
applicable Certificate Account for future distribution and so used to make P&I
Advances shall be appropriately reflected in the applicable Master Servicer's
records and replaced by such Master Servicer by deposit in the Certificate
Account on or before the next succeeding P&I Advance Date (to the extent not
previously replaced through the deposit of Late Collections of the delinquent
principal and/or interest in respect of which such P&I Advances were made). Each
Master Servicer shall notify the Trustee and the Co-Trustee of (i) the aggregate
amount of P&I Advances for a Distribution Date and (ii) the amount of any
Nonrecoverable P&I Advances for such Distribution Date, on or before 2 Business
Days prior to such Distribution Date. If any Master Servicer fails to make a
required P&I Advance by 4:00 p.m., New York City time, on any P&I Advance Date,
the Co-Trustee shall make such P&I Advance pursuant to Section 7.05 by noon, New
York City time, on the related Distribution Date, in each case unless such
Master Servicer shall have cured such failure (and provided written notice of
such cure to the Trustee and the Co-Trustee) by 11:00 a.m. (New York City Time)
on such Distribution Date. In the event that any Master Servicer fails to make a
required P&I Advance hereunder, the Trustee shall notify the Co-Trustee of such
circumstances by 4:30 p.m (New York City time) on the related P&I Advance Date.
(b) Subject to Sections 4.03(c) and (e) below, the amount of P&I
Advances to be made by any Master Servicer with respect to any Distribution Date
and each Mortgage Loan that it is responsible for servicing hereunder shall be
equal to: (i) the Monthly Payments (net of related Servicing Fees, and in the
case of the Non-Serviced Mortgage Loans, the applicable servicing fees payable
under this Agreement) other than Balloon Payments, that were due during the
related Due Period and delinquent as of the close of business on the Business
Day preceding the related P&I Advance Date and (ii) with respect to each
Mortgage Loan as to which the related Balloon Payment was due during or prior to
the related Due Period and was delinquent as of the close of business on the
Business Day preceding the related P&I Advance Date (including any REO Loan as
to which the Balloon Payment would have been past due), an amount equal to the
Assumed Scheduled Payment therefor. Subject to subsection (c) below, the
obligation of each Master Servicer to make such P&I Advances is mandatory, and
with respect to any Mortgage Loan or REO Loan, shall continue until the
Distribution Date on which the proceeds, if any, received in connection with a
Liquidation Event or the disposition of the REO Property, as the case may be,
with respect thereto are to be distributed. No P&I Advances shall be made with
respect to a Companion Loan.
(c) Notwithstanding anything herein to the contrary or as set forth
in the related Intercreditor Agreement, no P&I Advance shall be required to be
made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable
P&I Advance. With respect to the 000 Xxxxxxxxx Xxxxxx Mortgage Loan, the Master
Servicer will be required to make its determination that it has made a P&I
Advance on the 000 Xxxxxxxxx Xxxxxx Mortgage Loan that is a Nonrecoverable
Advance or that any proposed P&I Advance would, if made, constitute a
Nonrecoverable Advance with respect to the 000 Xxxxxxxxx Xxxxxx Mortgage Loan
independently of any determination made by any Other Servicer, under any Other
Pooling Agreement in respect of any related 000 Xxxxxxxxx Xxxxxx Pari Passu
Companion Loan. Upon making such a determination of nonrecoverability (and upon
any reversal of such determination), the applicable Master Servicer shall
promptly notify in writing (together with supporting evidence for such
determination) the 000 Xxxxxxxxx Xxxxxx Pari Passu Companion Loan Holders (and
any trustee or Other Servicer under a related Other Pooling and Servicing
Agreement, as applicable).
With respect to the Skyline Portfolio Mortgage Loan and the Solana
Mortgage Loan, the Master Servicer will be required to make its determination
that it has made a P&I Advance on the subject Mortgage Loan that is a
Nonrecoverable Advance or that any proposed P&I Advance would, if made,
constitute a Nonrecoverable Advance with respect to the subject Mortgage Loan.
Upon any such determination, the Master Servicer shall provide written notice of
such determination within 2 Business Days to each Other Servicer with respect to
any Skyline Portfolio Pari Passu Companion Loan or Solana Pari Passu Companion
Loan, as applicable. Once such notice has been delivered or the Master Servicer
has received notice from any Other Servicer with respect to any Skyline
Portfolio Pari Passu Companion Loan or Solana Pari Passu Companion Loan, as
applicable, of a nonrecoverability determination made by such Other Servicer, no
party to this Agreement shall make any additional P&I Advances with respect to
the related Mortgage Loan until the Master Servicer has consulted with each
related master servicer under any Other Pooling and Servicing Agreement with
respect to such Whole Loan and they agree that circumstances with respect to the
related Whole Loan have changed such that a proposed future P&I Advance would
not be a Non-Recoverable Advance. Notwithstanding the foregoing, the Master
Servicer shall not be required to abide by any determination of
non-recoverability by any Other Servicer with respect to the Skyline Portfolio
Whole Loan or the Solana Whole Loan if the Trustee or the Master Servicer has
received notice from S&P, Fitch or Xxxxx'x that such Other Servicer no longer
has the approval of S&P, Fitch or Xxxxx'x (and the notifying rating agency has
rated the securities issued under the related Other Pooling and Servicing
Agreement).
(d) In connection with the recovery of any P&I Advance out of the
applicable Certificate Account, pursuant to Section 3.05(a), the applicable
Master Servicer shall be entitled to pay the Co-Trustee and itself or the other
Master Servicer (if amounts in such other Master Servicer's Certificate Account
are not sufficient for such reimbursement) (in that order of priority) as the
case may be out of any amounts then on deposit in such Certificate Account (but
in no event from any funds payable or allocable to a holder of any Serviced
Securitized Companion Loan), interest at the Reimbursement Rate in effect from
time to time, accrued on the amount of such P&I Advance from the date made to
but not including the date of reimbursement; provided, however, that no interest
will accrue on any P&I Advance (i) made with respect to a Mortgage Loan until
after the related Due Date has passed and any applicable grace period has
expired or (ii) if the related Monthly Payment is received after the
Determination Date but on or prior to the related P&I Advance Date. Each Master
Servicer shall reimburse itself or the other Master Servicer (if amounts in such
other Master Servicer's Certificate Account are not sufficient for such
reimbursement) and the Co-Trustee, as the case may be, for any outstanding P&I
Advance, subject to Section 3.19 of this Agreement, as soon as practicably
possible after funds available for such purpose are deposited in its Certificate
Account.
(e) Notwithstanding the foregoing, (i) neither the Master Servicers
nor the Co-Trustee shall make an advance for Excess Interest, Yield Maintenance
Charges, Default Interest or Penalty Charges and (ii) if an Appraisal Reduction
has been made with respect to any Mortgage Loan then in the event of subsequent
delinquencies thereon, the interest portion of the P&I Advance in respect of
such Mortgage Loan for the related Distribution Date shall be reduced (it being
herein acknowledged that there shall be no reduction in the principal portion of
such P&I Advance) to equal the product of (x) the amount of the interest portion
of such P&I Advance for such Mortgage Loan for such Distribution Date without
regard to this subsection (ii), and (y) a fraction, expressed as a percentage,
the numerator of which is equal to the Stated Principal Balance of such Mortgage
Loan immediately prior to such Distribution Date, net of the related Appraisal
Reduction, if any, and the denominator of which is equal to the Stated Principal
Balance of such Mortgage Loan immediately prior to such Distribution Date. For
purposes of the immediately preceding sentence, the Monthly Payment due on the
Maturity Date for a Balloon Mortgage Loan will be the Assumed Scheduled Payment
for the related Distribution Date.
(f) In no event shall either the Master Servicers or the Co-Trustee
be required to make a P&I Advance with respect to any Companion Loan.
(g) None of the Master Servicers or the Co-Trustee shall advance any
amount due to be paid by the Swap Counterparty for distribution to the Class
A-2SFL Certificates and the Class A-JFL Certificates.
Section 4.04 Allocation of Collateral Support Deficit. (a) On each
Distribution Date, immediately following the distributions to be made on such
date pursuant to Section 4.01 and the allocation of Certificate Deferred
Interest pursuant to Section 4.06, the Trustee shall calculate the amount, if
any, by which (i) the aggregate Stated Principal Balance (for purposes of this
calculation only, not giving effect to any reductions of the Stated Principal
Balance for payments of principal collected on the Mortgage Loans that were used
to reimburse any Workout-Delayed Reimbursement Amounts pursuant to Section
3.05(a)(v) to the extent such Workout-Delayed Reimbursement Amounts are not
otherwise determined to be Nonrecoverable Advances) of the Mortgage Loans and
any REO Loans, expected to be outstanding immediately following such
Distribution Date, is less than (ii) the then aggregate Certificate Balance of
the Regular Certificates (other than the Class A-2SFL Certificates and the Class
A-JFL Certificates) and the Class A-2SFL Regular Interest and the Class A-JFL
Regular Interest after giving effect to distributions of principal on such
Distribution Date and the allocation of Certificate Deferred Interest pursuant
to Section 4.06 (any such deficit, the "Collateral Support Deficit"). Any
allocation of Collateral Support Deficit to a Class of Regular Certificates
(other than the Class A-2SFL Certificates and the Class A-JFL Certificates) and
the Class A-2SFL Regular Interest or the Class A-JFL Regular Interest shall be
made by reducing the Certificate Balance thereof by the amount so allocated. Any
Collateral Support Deficit allocated to the Class A-2SFL Regular Interest or the
Class A-JFL Regular Interest shall result in a corresponding reduction of the
Certificate Balance of the Class A-2SFL Certificates and the Class A-JFL
Certificates, respectively. Any Collateral Support Deficit allocated to a Class
of Regular Certificates (or, in the case of the Class A-2SFL Certificates and
the Class A-JFL Certificates, an amount corresponding to any Collateral Support
Deficit allocated to the Class A-2SFL Regular Interest or the Class A-JFL
Regular Interest, as applicable) shall be allocated among the respective
Certificates of such Class in proportion to the Percentage Interests evidenced
thereby. The allocation of Collateral Support Deficit shall constitute an
allocation of losses and other shortfalls experienced by the Trust Fund.
Reimbursement of previously allocated Collateral Support Deficit will not
constitute distributions of principal for any purpose and will not result in an
additional reduction in the Certificate Balance of the Class of Certificates
(or, in the case of the Class A-2SFL Certificates and the Class A-JFL
Certificates, an amount corresponding to any Collateral Support Deficit
allocated to the Class A-2SFL or Class A-JFL Regular Interest, as applicable) in
respect of which any such reimbursement is made. To the extent any
Nonrecoverable Advances (plus interest thereon) that were reimbursed from
principal collections on the Mortgage Loans and previously resulted in a
reduction of the Principal Distribution Amount, Loan Group R-1 Principal
Distribution Amount, Loan Group R-2 Principal Distribution Amount, Loan Group R
Principal Distribution Amount or Loan Group S Principal Distribution Amount are
subsequently recovered on the related Mortgage Loan, the amount of such recovery
will be added to the Certificate Balance of the Class or Classes of Certificates
or Class A-2SFL Regular Interest or Class A-JFL Regular Interest that previously
were allocated Collateral Support Deficit, in sequential order, in each case up
to the amount of the unreimbursed Collateral Support Deficit allocated to such
Class of Certificates or Regular Interest. If the Certificate Balance of any
Class of Certificates or Class A-2SFL Regular Interest or Class A-JFL Regular
Interest is so increased, the amount of unreimbursed Collateral Support Deficit
of such Class of Certificates or such Class of Regular Interest shall be
decreased by such amount.
(b) On each Distribution Date, the Certificate Balances of the
Regular Certificates (other than the Class A-2SFL Certificates and the Class
A-JFL Certificates) and the Class A-2SFL Regular Interest and the Class A-JFL
Regular Interest will be reduced without distribution, as a write-off to the
extent of any Collateral Support Deficit, if any, allocable to such Certificates
or such Class of Regular Interest, as applicable, with respect to such
Distribution Date. Any such write-off shall be allocated first to the Class NR
Certificates; second to the Class P Certificates; third to the Class N
Certificates; fourth to the Class M Certificates; fifth to the Class L
Certificates; sixth to the Class K Certificates; seventh to the Class J
Certificates; eighth, to the Class H Certificates and the Class H-S
Certificates, pro rata (based upon their respective Certificate Balances);
ninth, to the Class G Certificates and Class G-S Certificates, pro rata (based
upon their respective Certificate Balances); tenth, to the Class F Certificates
and the Class F-S Certificates, pro rata (based upon their respective
Certificate Balances); eleventh, to the Class E Certificates and the Class E-S
Certificates, pro rata (based upon their respective Certificate Balances);
twelfth, to the Class D Certificates and the Class D-S Certificates, pro rata
(based upon their respective Certificate Balances); thirteenth, to the Class C
Certificates and the Class C-S Certificates, pro rata (based upon their
respective Certificate Balances); fourteenth to the Class B Certificates and the
Class B-S Certificates, pro rata (based upon their respective Certificate
Balances); fifteenth to the Class A-J Certificates, the Class A-JS Certificates
and Class A-JFL Regular Interest, pro rata (based upon their respective
Certificate Balances); sixteenth, to the Class A-M Certificates and Class A-MS
Certificates, pro rata (based upon their respective Certificate Balances) and
seventeenth to the Class A-1 Certificates, Class A-1S Certificates, Class A-2
Certificates, Class A-2S Certificates, Class A-3 Certificates, Class A-3S
Certificates, Class A-1A Certificates and Class A-2SFL Regular Interest, pro
rata (based upon their respective Certificate Balances), until the remaining
Certificate Balances of such Classes of Certificates or such Classes of Regular
Interest, as applicable, have been reduced to zero.
(c) With respect to any Distribution Date, any Collateral Support
Deficit allocated to a Class of Certificates (other than the Class A-2SFL, Class
A-JFL, Class S, Class X, Class R and Class LR Certificates) or Class A-2SFL
Regular Interest or Class A-JFL Regular Interest pursuant to Section 4.04(b)
with respect to such Distribution Date shall reduce the Middle-Tier Principal
Amount of the Related Uncertificated Middle-Tier Interest with respect thereto
as a write-off.
(d) With respect to any Distribution Date, (i) any losses determined
to be allocable to Mortgage Loans in Loan Group R following a Final Recovery
Determination shall be allocated first to the Class L-RQ Uncertificated Interest
until reduced to zero and then, to the Class L-RB Uncertificated Interest until
reduced to zero, and (ii) any losses determined to be allocable to Mortgage
Loans in Loan Group S following a Final Recovery Determination shall be
allocated first to the Class L-SQ Uncertificated Interest until reduced to zero,
and then to the Class L-SB Uncertificated Interest until reduced to zero.
Section 4.05 Appraisal Reductions. The aggregate Appraisal Reduction
will be allocated by the Trustee on each Distribution Date, only for purposes of
determining the amount of P&I Advances with respect to the related Mortgage
Loan, to the Certificate Balance of the Class NR Certificates, Class P
Certificates, Class N Certificates, Class M Certificates, Class L Certificates,
Class K Certificates, Class J Certificates, Class H Certificates and Class H-S
Certificates, pro rata (based upon their respective Certificate Balances), Class
G Certificates and Class G-S Certificates, pro rata (based upon their respective
Certificate Balances), Class F Certificates and Class F-S Certificates, pro rata
(based upon on their respective Certificate Balances), Class E Certificates and
Class E-S Certificates, pro rata (based upon their respective Certificate
Balances), Class D Certificates and Class D-S Certificates, pro rata (based upon
their respective Certificate Balances), Class C Certificates and Class C-S
Certificates, pro rata (based upon their respective Certificate Balances), Class
B Certificates and Class B-S Certificates, pro rata (based upon their respective
Certificate Balances), Class A-J Certificates and Class A-JS Certificates and
Class A-JFL Regular Interest, pro rata (based upon their respective Certificate
Balances) and then the Class A-M Certificates and Class A-MS Certificates, pro
rata (based upon their respective Certificate Balances) in that order, up to the
amount of their respective Certificate Balances. On any Distribution Date, an
Appraisal Reduction that otherwise would be allocated to a Class of Certificates
will be allocated to the next most subordinate Class to the extent that the
Certificate Balance on such Distribution Date for such Class of Certificates
(prior to taking the Appraisal Reduction into account) is less than the
Appraisal Reduction for such Distribution Date.
With respect to any Serviced Whole Loan, Appraisal Reductions will
be calculated based on the aggregate outstanding principal balance of the
related Serviced Mortgage Loan and the related Companion Loan(s). Any resulting
Appraisal Reductions will be allocated, first to any subordinate Companion Loan
up to the principal amount thereof and then pro rata, to the related Mortgage
Loan and the related pari passu Companion Loan(s), if any, based on their Stated
Principal Balances.
Section 4.06 Certificate Deferred Interest. (a) On each Distribution
Date, the amount of interest distributable to a Class of Certificates (other
than the Class A-2SFL, Class A-JFL, Class X, Class S, Class R, Class MR and
Class LR Certificates) and the Class A-2SFL Regular Interest and the Class A-JFL
Regular Interest shall be reduced by an amount equal to the amount of Mortgage
Deferred Interest for all Mortgage Loans for the Due Dates occurring in the
related Due Period allocated to such Class of Certificates or such Class of
Regular Interest, as applicable, such Mortgage Deferred Interest to be allocated
first, to the Class NR Certificates; second to the Class P Certificates; third
to the Class N Certificates; fourth to the Class M Certificates; fifth to the
Class L Certificates; sixth to the Class K Certificates; seventh to the Class J
Certificates; eighth, to the Class H Certificates and the Class H-S
Certificates, pro rata (based upon their respective Certificate Balances);
ninth, to the Class G Certificates and Class G-S Certificates, pro rata (based
upon their respective Certificate Balances); tenth, to the Class F Certificates
and the Class F-S Certificates, pro rata (based upon their respective
Certificate Balances); eleventh, to the Class E Certificates and the Class E-S
Certificates, pro rata (based upon their respective Certificate Balances);
twelfth, to the Class D Certificates and the Class D-S Certificates, pro rata
(based upon their respective Certificate Balances); thirteenth, to the Class C
Certificates and the Class C-S Certificates, pro rata (based upon their
respective Certificate Balances); fourteenth to the Class B Certificates and the
Class B-S Certificates, pro rata (based upon their respective Certificate
Balances); fifteenth to the Class A-J Certificates, the Class A-JS Certificates
and the Class A-JFL Regular Interest, pro rata (based upon their respective
Certificate Balances); sixteenth, to the Class A-M Certificates and Class A-MS
Certificates, pro rata (based upon their respective Certificate Balances) and
seventeenth to the Class A-1 Certificates, Class A-1S Certificates, Class A-2
Certificates, Class A-2S Certificates, Class A-3 Certificates, Class A-3S
Certificates, Class A-1A Certificates and Class A-2SFL Regular Interest, pro
rata (based upon their respective Certificate Balances), in each case up to the
respective Accrued Certificate Interest for each such Class of Certificates or
the Class A-2SFL Regular Interest for such Distribution Date. Certificate
Deferred Interest allocated to the Class A-2SFL Regular Interest and Class A-JFL
Regular Interest will, by virtue of such allocation, be allocated to the Class
A-2SFL Certificates and Class A-JFL Certificates, respectively.
(b) On each Distribution Date, the Certificate Balances of the Class
A-1 Certificates, Class A-1S Certificates, Class A-2 Certificates, Class A-2S
Certificates, Class A-2SFL Regular Interest (and correspondingly the Class
A-2SFL Certificates), Class A-3 Certificates, Class A-3S Certificates, Class
A-1A Certificates, Class A-M Certificates, Class A-MS Certificates, Class A-J
Certificates, Class A-JFL Regular Interest (and correspondingly the Class A-JFL
Certificates), Class A-JS Certificates, Class B Certificates, Class B-S
Certificates, Class C Certificates, Class C-S Certificates, Class D
Certificates, Class D-S Certificates, Class E Certificates, Class E-S
Certificates, Class F Certificates, Class F-S Certificates, Class G
Certificates, Class G-S Certificates, Class H Certificates, Class H-S
Certificates, Class J Certificates, Class K Certificates, Class L Certificates,
Class M Certificates, Class N Certificates, Class P Certificates and Class NR
Certificates shall be increased by the amount of the Certificate Deferred
Interest allocated to such Class of Certificates or the Class A-2SFL Regular
Interest or the Class A-JFL Regular Interest, as applicable, on such
Distribution Date pursuant to Section 4.06(a) above.
(c) With respect to any Distribution Date, any Certificate Deferred
Interest with respect to such Distribution Date allocated pursuant to Section
4.06(a) to a Class of Certificates or the Class A-2SFL Regular Interest or the
Class A-JFL Regular Interest, as applicable, shall be allocated in reduction of
the amount of interest distributable to the Related Uncertificated Lower-Tier
Interest with respect thereto. On each Distribution Date, to the extent provided
in Section 4.06(b) with respect to the Related Certificates, Certificate
Deferred Interest will be added to the Middle-Tier Principal Amount of the
Uncertificated Middle-Tier Interests in the same manner as the interest thereon
was reduced pursuant to the preceding sentence.
(d) With respect to any Distribution Date, (i) any Certificate
Deferred Interest determined to be allocable to Mortgage Loans in Loan Group R
shall be allocated first to the Class L-RQ Uncertificated Interest in reduction
of the amount of interest distributable thereon until reduced to zero and then,
to the Class L-RB Uncertificated Interest in reduction of the amount of interest
distributable thereon until reduced to zero, and (ii) any Certificate Deferred
Interest determined to be allocable to Mortgage Loans in Loan Group S shall be
allocated first to the Class L-SQ Uncertificated Interest in reduction of the
amount of interest distributable thereon until reduced to zero, and then to the
Class L-SB Uncertificated Interest in reduction of the amount of interest
distributable thereon until reduced to zero. On each Distribution Date,
Certificate Deferred Interest will be added to the Lower-Tier Principal Amount
of the Uncertificated Lower-Tier Interests in the same manner as the interest
thereon was reduced pursuant to the preceding sentence.
Section 4.07 Grantor Trust Reporting. The parties intend that the
portion of the Trust Fund constituting the Grantor Trust, which consists of (i)
the Excess Interest allocable to the Mortgage Loans, proceeds thereof held in
the Certificate Account pertaining to the Excess Interest allocable to the
Mortgage Loans and the Excess Interest Distribution Account and (ii) the Class
A-2SFL Regular Interest, the Class A-JFL Regular Interest, the Swap Contracts,
the Floating Rate Accounts and proceeds thereof, shall constitute, and that the
affairs of the Trust Fund (exclusive of the Lower-Tier REMIC, the Middle-Tier
REMIC and the Upper-Tier REMIC) shall be conducted so as to qualify such portion
as, a "grantor trust" under subpart E, Part I of subchapter J of the Code, and
the provisions hereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Trustee shall have no power to vary the
investment of the Class A-2SFL and Class A-JFL Certificateholders in their
related assets so as to improve their rate of return. In addition, the Trustee
shall (A) as soon as possible after the Swap Contracts are entered into (but no
later than the first payment date under the Swap Contracts), obtain a taxpayer
identification number for the Grantor Trust and deliver or cause to be delivered
the federal taxpayer identification number of the Grantor Trust on an IRS Form
W-9 to each Swap Counterparty and, if requested by the Swap Counterparty (unless
not permitted under federal income tax law), an applicable IRS Form W-8IMY, (B)
file, or cause to be filed, Internal Revenue Service Form 1041 or such other
form as may be applicable with the Internal Revenue Service with copies of the
statements in the following clause, (C) furnish, or cause to be furnished, to
the Class A-2SFL Certificateholders and the Class A-JFL Certificateholders,
their allocable share of income and expense with respect to the Class A-2SFL
Regular Interest and the Class A-JFL Regular Interest and the Swap Contracts,
each in the time or times and in the manner required by the Code and (D)
furnish, or cause to be furnished, to the Class S Certificateholders, their
allocable share of income with respect to Excess Interest accrued or received,
as applicable.
[End of Article IV]
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates will be
substantially in the respective forms annexed hereto as Exhibits A-1 through and
including A-39. The Certificates will be issuable in registered form only;
provided, however, that in accordance with Section 5.03 beneficial ownership
interests in the Regular Certificates shall initially be held and transferred
through the book-entry facilities of the Depository. The Class S, Class R, Class
MR and Class LR Certificates will each be issuable in one or more registered,
definitive physical certificates (each, a "Definitive Certificate")
substantially in the form of Certificates of each Class and with such applicable
legends as are set forth in the Exhibits hereto corresponding to such Class.
Each Certificate will share ratably in all rights of the related Class. The
Class X Certificates will be issuable only in minimum Denominations of
authorized initial Notional Amount of not less than $1,000,000 and in integral
multiples of $1.00 in excess thereof. The Class A-2SFL and the Class A-JFL will
be issuable only in minimum Denominations of authorized initial Certificate
Balance of not less than $100,000 and in integral multiples of $1.00 in excess
thereof. The Offered Certificates (other than the Class X Certificates, the
Class A-2SFL Certificates and the Class A-JFL Certificates) will be issuable
only in minimum Denominations of authorized initial Certificate Balance of not
less than $10,000, and in integral multiples of $1.00 in excess thereof. The
Non-Registered Certificates (other than the Class S and Residual Certificates)
will be issuable in minimum Denominations of authorized initial Certificate
Balance of not less than $250,000, and in integral multiples of $1.00 in excess
thereof. If the Original Certificate Balance or initial Notional Amount, as
applicable, of any Class does not equal an integral multiple of $1.00, then a
single additional Certificate of such Class may be issued in a minimum
denomination of authorized initial Certificate Balance or initial Notional
Amount, as applicable, that includes the excess of (i) the Original Certificate
Balance or initial Notional Amount, as applicable, of such Class over (ii) the
largest integral multiple of $1.00 that does not exceed such amount. The Class
S, Class R, Class MR and Class LR Certificates will be issuable only in one or
more Definitive Certificates in denominations representing Percentage Interests
of not less than 20%. With respect to any Certificate or any beneficial interest
in a Certificate, the "Denomination" thereof shall be (i) the amount (a) set
forth on the face thereof or, (b) set forth on a schedule attached thereto or
(c) in the case of any beneficial interest in a Book-Entry Certificate, the
interest of the related Certificate Owner in the applicable Class of
Certificates as reflected on the books and records of the Depository or related
Participants, as applicable, (ii) expressed in terms of initial Certificate
Balance or initial Notional Amount, as applicable, and (iii) be in an authorized
denomination, as set forth above. The Book-Entry Certificates will be issued as
one or more certificates registered in the name of a nominee designated by the
Depository, and Certificate Owners will hold interests in the Book-Entry
Certificates through the book-entry facilities of the Depository in the minimum
Denominations and aggregate Denominations as set forth in the above. No
Certificate Owner of a Book-Entry Certificate of any Class thereof will be
entitled to receive a Definitive Certificate representing its interest in such
Class, except as provided in Section 5.03 herein. Unless and until Definitive
Certificates are issued in respect of a Class of Book-Entry Certificates,
beneficial ownership interests in such Class of Certificates will be maintained
and transferred on the book-entry records of the Depository and Depository
Participants, and all references to actions by Holders of such Class of
Certificates will refer to action taken by the Depository upon instructions
received from the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures and,
except as otherwise set forth herein, all references herein to payments,
notices, reports and statements to Holders of such Class of Certificates will
refer to payments, notices, reports and statements to the Depository or its
nominee as the registered Holder thereof, for distribution to the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures.
(a) The Certificates shall be executed by manual or facsimile
signature on behalf of the Certificate Registrar by an authorized signatory.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the authorized signatories of the Certificate Registrar shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. Xxxxx Fargo Bank,
N.A., located at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, is
hereby initially appointed Authenticating Agent with power to act, on the
Trustee's behalf, in the authentication and delivery of the Certificates in
connection with transfers and exchanges as herein provided. If Xxxxx Fargo Bank,
N.A., is removed as Trustee, then Xxxxx Fargo Bank, N.A. shall be terminated as
Authenticating Agent. If the Authenticating Agent is terminated, the Trustee
shall appoint a successor Authenticating Agent, which may be the Trustee or an
Affiliate thereof.
(b) Any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or with
rules or regulations pursuant thereto, or with the rules of any securities
market in which the Certificates are admitted to trading, or to conform to
general usage.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be maintained at
the office of the Certificate Registrar a Certificate Register in which, subject
to such reasonable regulations as the Certificate Registrar may prescribe, the
Certificate Registrar shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. Xxxxx Fargo Bank,.
N.A., located at Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services - X.X. Xxxxxx
2007-LDP10, is hereby initially appointed Certificate Registrar for the purpose
of registering Certificates and transfers and exchanges of Certificates as
herein provided. The Certificate Registrar may appoint, by a written instrument
delivered to the Depositor, the Trustee, the Co-Trustee, the Special Servicer
and the Master Servicers, any other bank or trust company to act as Certificate
Registrar under such conditions as the predecessor Certificate Registrar may
prescribe, provided that the predecessor Certificate Registrar shall not be
relieved of any of its duties or responsibilities hereunder by reason of such
appointment. The Depositor, the Trustee, the Master Servicers and the Special
Servicer shall have the right to inspect the Certificate Register or to obtain a
copy thereof at all reasonable times, and to rely conclusively upon a
certificate of the Certificate Registrar as to the information set forth in the
Certificate Register. The names and addresses of all Certificateholders and the
names and addresses of the transferees of any Certificates shall be registered
in the Certificate Register; provided, however, in no event shall the
Certificate Registrar be required to maintain in the Certificate Register the
names of Certificate Owners. The Person in whose name any Certificate is so
registered shall be deemed and treated as the sole owner and Holder thereof for
all purposes of this Agreement and the Certificate Registrar, the Master
Servicers, the Trustee, the Co-Trustee, the Special Servicer and any agent of
any of them shall not be affected by any notice or knowledge to the contrary. A
Definitive Certificate is transferable or exchangeable only upon the surrender
of such Certificate to the Certificate Registrar at its office maintained at
Xxxxx Fargo Bank, N.A., Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services - X.X. Xxxxxx
2007-LDP10 (the "Registrar Office") together with an assignment and transfer
(executed by the Holder or his duly authorized attorney). Subject to the
requirements of Sections 5.02(b), (c) and (d), the Certificate Registrar shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
Denominations of a like aggregate Denomination as the Definitive Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e). Each Certificate surrendered for
registration of transfer shall be canceled, and the Certificate Registrar shall
hold such canceled Certificates in accordance with its standard procedures.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does not
require such registration or qualification. If a transfer (other than one by the
Depositor to an Affiliate thereof or by the Initial Purchasers to JER Investors
Trust, Inc.) is to be made in reliance upon an exemption from the Securities
Act, and under the applicable state securities laws, then either:
(i) Rule 144A Book-Entry Certificate to Regulation S Book-Entry
Certificate During the Restricted Period. If, during the Restricted
Period, a Certificate Owner of an interest in a Rule 144A Book-Entry
Certificate wishes at any time to transfer its beneficial interest in such
Rule 144A Book-Entry Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such Certificate Owner may, in addition to complying with all
applicable rules and procedures of the Depository and Clearstream or
Euroclear applicable to transfers by their respective participants (the
"Applicable Procedures"), transfer or cause the transfer of such
beneficial interest for an equivalent beneficial interest in the
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(i). Upon receipt by the Certificate
Registrar at its Registrar Office of (1) written instructions given in
accordance with the Applicable Procedures from a Depository Participant
directing the Certificate Registrar to credit or cause to be credited to
another specified Depository Participant's account a beneficial interest
in the Regulation S Book-Entry Certificate in an amount equal to the
Denomination of the beneficial interest in the Rule 144A Book-Entry
Certificate to be transferred, (2) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Depository Participant (and the Euroclear or Clearstream
account, as the case may be) to be credited with, and the account of the
Depository Participant to be debited for, such beneficial interest, and
(3) a certificate in the form of Exhibit K hereto given by the Certificate
Owner that is transferring such interest, the Certificate Registrar, as
custodian of the Book-Entry Certificates shall reduce the Denomination of
the Rule 144A Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred, and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the Rule
144A Book-Entry Certificate was reduced upon such transfer.
(ii) Rule 144A Book-Entry Certificate to Regulation S Book-Entry
Certificate After the Restricted Period. If, after the Restricted Period,
a Certificate Owner of an interest in a Rule 144A Book-Entry Certificate
wishes at any time to transfer its beneficial interest in such Rule 144A
Book-Entry Certificate to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such holder may, in addition to complying with all Applicable
Procedures, transfer or cause the transfer of such beneficial interest for
an equivalent beneficial interest in a Regulation S Book-Entry Certificate
only upon compliance with the provisions of this Section 5.02(b)(ii). Upon
receipt by the Certificate Registrar at its Registrar Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in the Regulation S Book-Entry
Certificate in an amount equal to the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be transferred, (2) a
written order given in accordance with the Applicable Procedures
containing information regarding the account of the Depository Participant
(and, in the case of a transfer pursuant to and in accordance with
Regulation S, the Euroclear or Clearstream account, as the case may be) to
be credited with, and the account of the Depository Participant to be
debited for, such beneficial interest, and (3) a certificate in the form
of Exhibit N hereto given by the Certificate Owner that is transferring
such interest, the Certificate Registrar as custodian of the Book-Entry
Certificates shall reduce the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the aggregate Denomination of the
beneficial interest in the Rule 144A Book-Entry Certificate to be so
transferred, and credit or cause to be credited to the account of the
Person specified in such instructions (who shall be a Depository
Participant acting for or on behalf of Euroclear or Clearstream, or both,
as the case may be) a beneficial interest in the Regulation S Book-Entry
Certificate having a Denomination equal to the amount by which the
Denomination of the Rule 144A Book-Entry Certificate was reduced upon such
transfer.
(iii) Regulation S Book-Entry Certificate to Rule 144A Book-Entry
Certificate. If the Certificate Owner of an interest in a Regulation S
Book-Entry Certificate wishes at any time to transfer its beneficial
interest in such Regulation S Book-Entry Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial interest in
the Rule 144A Book-Entry Certificate, such holder may, in addition to
complying with all Applicable Procedures, transfer or cause the transfer
of such beneficial interest for an equivalent beneficial interest in the
Rule 144A Book-Entry Certificate only upon compliance with the provisions
of this Section 5.2(b)(iii). Upon receipt by the Certificate Registrar at
its Registrar Office of (1) written instructions given in accordance with
the Applicable Procedures from a Depository Participant directing the
Certificate Registrar to credit or cause to be credited to another
specified Depository Participant's account a beneficial interest in the
Rule 144A Book-Entry Certificate in an amount equal to the Denomination of
the beneficial interest in the Regulation S Book-Entry Certificate to be
transferred, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Depository
Participant to be credited with, and the account of the Depository
Participant (or, if such account is held for Euroclear or Clearstream, the
Euroclear or Clearstream account, as the case may be) to be debited for
such beneficial interest, and (3) with respect to a transfer of a
beneficial interest in the Regulation S Book-Entry Certificate for a
beneficial interest in the related Rule 144A Book-Entry Certificate (i)
during the Restricted Period, a certificate in the form of Exhibit O
hereto given by the Certificate Owner, or (ii) after the Restricted
Period, an Investment Representation Letter in the form of Exhibit C
attached hereto from the transferee to the effect that such transferee is
a Qualified Institutional Buyer (an "Investment Representation Letter"),
the Certificate Registrar, as custodian of the Book-Entry Certificates,
shall reduce the Denomination of the Regulation S Book-Entry Certificate
by the Denomination of the beneficial interest in the Regulation S
Book-Entry Certificate to be transferred, and, concurrently with such
reduction, increase the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Regulation S Book-Entry Certificate to be so transferred, and credit
or cause to be credited to the account of the Person specified in such
instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Rule 144A Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the
Regulation S Book-Entry Certificate was reduced upon such transfer.
(iv) Transfers Within Regulation S Book-Entry Certificates During
Restricted Period. If, during the Restricted Period, the Certificate Owner
of an interest in a Regulation S Book-Entry Certificate wishes at any time
to transfer its beneficial interest in such Certificate to a Person who
wishes to take delivery thereof in the form of a Regulation S Book-Entry
Certificate, such Certificate Owner may transfer or cause the transfer of
such beneficial interest for an equivalent beneficial interest in such
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(iv) and all Applicable Procedures. Upon
receipt by the Certificate Registrar at its Registrar Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in such Regulation S
Book-Entry Certificate in an amount equal to the Denomination of the
beneficial interest to be transferred, (2) a written order given in
accordance with the Applicable Procedures containing information regarding
the account of the Depository Participant to be credited with, and the
account of the Depository Participant (or, if such account is held for
Euroclear or Clearstream, the Euroclear or Clearstream account, as the
case may be) to be debited for, such beneficial interest and (3) a
certificate in the form of Exhibit P hereto given by the transferee, the
Certificate Registrar, as custodian of the Book-Entry Certificates, shall
debit the account of the transferring Regulation S Certificateholder and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount specified in such instructions by which
the account to be debited was reduced upon such transfer.
(v) Transfers of Book-Entry Certificates to Definitive Certificates.
Any and all transfers from a Book-Entry Certificate to a transferee
wishing to take delivery in the form of a Definitive Certificate will
require the transferee to take delivery subject to the restrictions on the
transfer of such Definitive Certificate described on the face of such
Certificate, and such transferee agrees that it will transfer such
Definitive Certificate only as provided therein and herein. No such
transfer shall be made and the Certificate Registrar shall not register
any such transfer unless such transfer is made in accordance with this
Section 5.02(b)(v).
(A) Transfers of a beneficial interest in a Book-Entry
Certificate to an Institutional Accredited Investor will require
delivery of such Certificate to the transferee in the form of a
Definitive Certificate and the Certificate Registrar shall register
such transfer only if prior to the transfer (i) two years have
expired after the later of the Closing Date or the last date on
which the Depositor or any Affiliate thereof held such Certificate,
or (ii) such transferee furnishes to the Certificate Registrar (1)
an Investment Representation Letter in the form of Exhibit C
attached hereto to the effect that the transfer is being made to an
Institutional Accredited Investor in accordance with an applicable
exemption under the Act, and (2) if required by the Certificate
Registrar, an opinion of counsel acceptable to the Certificate
Registrar that such transfer is in compliance with the Act.
(B) Transfers of a beneficial interest in a Book-Entry
Certificate to a Regulation S Investor wishing to take delivery in
the form of a Definitive Certificate will be registered by the
Certificate Registrar only if the transferor has provided the
Certificate Registrar with a certificate in the form of Exhibit P
attached hereto. Transfers of a beneficial interest in a Book-Entry
Certificate to a Qualified Institutional Buyer wishing to take
delivery in the form of a Definitive Certificate will be registered
by the Certificate Registrar only if such transferee furnishes to
the Certificate Registrar an Investment Representation Letter in the
form of Exhibit C attached hereto to the effect that the transfer is
being made to a Qualified Institutional Buyer in accordance with
Rule 144A under the Act.
(C) Notwithstanding the foregoing, no transfer of a beneficial
interest in a Regulation S Book-Entry Certificate to a Definitive
Certificate pursuant to subparagraph (B) above shall be made prior
to the expiration of the Restricted Period. Upon acceptance for
exchange or transfer of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate, as provided herein, the
Certificate Registrar shall endorse on the schedule affixed to the
related Book-Entry Certificate (or on a continuation of such
schedule affixed to such Book-Entry Certificate and made a part
thereof) an appropriate notation evidencing the date of such
exchange or transfer and a decrease in the Denomination of such
Book-Entry Certificate equal to the Denomination of such Definitive
Certificate issued in exchange therefor or upon transfer thereof.
(vi) Transfers of Definitive Certificates to the Book-Entry
Certificates. If a Holder of a Definitive Certificate (other than a Class
S Certificate) wishes at any time to transfer such Certificate to a Person
who wishes to take delivery thereof in the form of a beneficial interest
in the related Regulation S Book-Entry Certificate or the related Rule
144A Book-Entry Certificate, such transfer may be effected only in
accordance with the Applicable Procedures, and this Section 5.02(b)(vi).
Upon receipt by the Certificate Registrar at the Registrar Office of (1)
the Definitive Certificate to be transferred with an assignment and
transfer pursuant to Section 5.02(d), (2) written instructions given in
accordance with the Applicable Procedures from a Depository Participant
directing the Certificate Registrar to credit or cause to be credited to
another specified Depository Participant's account a beneficial interest
in such Regulation S Book-Entry Certificate or such Rule 144A Book-Entry
Certificate, as the case may be, in an amount equal to the Denomination of
the Definitive Certificate to be so transferred, (3) a written order given
in accordance with the Applicable Procedures containing information
regarding the account of the Depository Participant (and, in the case of
any transfer pursuant to Regulation S, the Euroclear or Clearstream
account, as the case may be) to be credited with such beneficial interest,
and (4) (x) if delivery is to be taken in the form of a beneficial
interest in the Regulation S Book-Entry Certificate, a Regulation S
Transfer Certificate from the transferor or (y) an Investment
Representation Letter from the transferee to the effect that such
transferee is a Qualified Institutional Buyer, if delivery is to be taken
in the form of a beneficial interest in the Rule 144A Book-Entry
Certificate, the Certificate Registrar shall cancel such Definitive
Certificate, execute and deliver a new Definitive Certificate for the
Denomination of the Definitive Certificate not so transferred, registered
in the name of the Holder, and the Certificate Registrar, as custodian of
the Book-Entry Certificates, shall increase the Denomination of the
Regulation S Book-Entry Certificate or the Rule 144A Book-Entry
Certificate, as the case may be, by the Denomination of the Definitive
Certificate to be so transferred, and credit or cause to be credited to
the account of the Person specified in such instructions (who, in the case
of any increase in the Regulation S Book-Entry Certificate during the
Restricted Period, shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
corresponding Denomination of the Rule 144A Book-Entry Certificate or the
Regulation S Book-Entry Certificate, as the case may be.
It is the intent of the foregoing that under no circumstances may an
Institutional Accredited Investor that is not a Qualified Institutional Buyer
take delivery in the form of a beneficial interest in a Book-Entry Certificate.
(vii) Transfers of Definitive Certificates to Definitive
Certificates. Any and all transfers from a Definitive Certificate to a
transferee wishing to take delivery in the form of a Definitive
Certificate will require the transferee to take delivery subject to the
restrictions on the transfer of such Definitive Certificate described on
the face of such Certificate, and such transferee agrees that it will
transfer such Definitive Certificate only as provided therein and herein.
No such transfer shall be made and the Certificate Registrar shall not
register any such transfer unless such transfer is made in accordance with
procedures substantially consistent with those set forth in Section
5.02(b)(v), provided, however, that any such transfer of a Class S
Certificate shall be made only to a transferee that is a Qualified
Institutional Buyer.
(viii) An exchange of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate or Certificates, an exchange of a
Definitive Certificate or Certificates for a beneficial interest in the
Book-Entry Certificate and an exchange of a Definitive Certificate or
Certificates for another Definitive Certificate or Certificates (in each
case, whether or not such exchange is made in anticipation of subsequent
transfer, and in the case of the Book-Entry Certificates, so long as the
Book-Entry Certificates remain outstanding and are held by or on behalf of
the Depository), may be made only in accordance with this Section 5.02 and
in accordance with the rules of the Depository and Applicable Procedures.
Any purported or attempted transfer of a Non-Registered Certificate
in violation of the provisions of this Section 5.02(b) shall be null and void ab
initio and shall vest no rights in any purported transferee.
Unless the Non-Registered Certificates have been registered under
the Securities Act, each of the Non-Registered Certificates shall bear a legend
substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN
ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C)
(OTHER THAN WITH RESPECT TO A CLASS S CERTIFICATE OR A RESIDUAL
CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (d) (OTHER THAN WITH RESPECT
TO A CLASS S CERTIFICATE OR A RESIDUAL CERTIFICATE) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A CLASS S CERTIFICATE OR A RESIDUAL CERTIFICATE) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE
REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT
PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN
INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN
TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT
REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED
INSTITUTIONAL BUYER OR (OTHER THAN WITH RESPECT TO A CLASS S
CERTIFICATE OR A RESIDUAL CERTIFICATE) AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A.
(c) With respect to the ERISA Restricted Certificates and the Class
S Certificates, no sale, transfer, pledge or other disposition of any such
Certificate shall be made unless the Certificate Registrar shall have received
either (i) a representation letter from the proposed purchaser or transferee of
such Certificate substantially in the form of Exhibit F attached hereto, to the
effect that such proposed purchaser or transferee is not (a) an employee benefit
plan subject to the fiduciary responsibility provisions of ERISA or a plan
subject to Section 4975 of the Code, or a governmental plan (as defined in
Section 3(32) of ERISA) or a church plan (as defined in Section 3(33) of ERISA)
for which no election has been made under Section 410(d) of the Code subject to
any federal, state or local law ("Similar Law") which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code (each, a "Plan") or (b)
a person acting on behalf of or using the assets of any such Plan (including an
entity whose underlying assets include Plan assets by reason of investment in
the entity by such Plan and the application of Department of Labor Regulation
ss. 2510.3-101), other than, except in the case of the Class S Certificates, an
insurance company using the assets of its general account under circumstances
whereby the purchase and holding of such Certificates by such insurance company
would be exempt from the prohibited transaction provisions of ERISA and the Code
under Sections I and III of Prohibited Transaction Class Exemption 95-60 or (ii)
if such Certificate, other than a Class S Certificate, which may be held only by
a person not described in (a) or (b) above, is presented for registration in the
name of a purchaser or transferee that is any of the foregoing, an Opinion of
Counsel in form and substance satisfactory to the Certificate Registrar and the
Depositor to the effect that the acquisition and holding of such Certificate by
such purchaser or transferee will not constitute or result in a non-exempt
"prohibited transaction" within the meaning of ERISA, Section 4975 of the Code
or any Similar Law, and will not subject the Trustee, the Co-Trustee, the
Certificate Registrar, the Master Servicers, the Special Servicer, the
Underwriters, the Initial Purchasers or the Depositor to any obligation or
liability (including obligations or liabilities under ERISA, Section 4975 of the
Code or any such Similar Law) in addition to those set forth in the Agreement.
The Certificate Registrar shall not register the sale, transfer, pledge or other
disposition of any ERISA Restricted Certificate or Class S Certificate unless
the Certificate Registrar has received either the representation letter
described in clause (i) above or in the case of an ERISA Restricted Certificate,
the Opinion of Counsel described in clause (ii) above. The costs of any of the
foregoing representation letters or Opinions of Counsel shall not be borne by
any of the Depositor, the Master Servicers, the Special Servicer, the Trustee,
the Co-Trustee, the Underwriters, the Initial Purchasers, the Certificate
Registrar or the Trust Fund. Each Certificate Owner of an ERISA Restricted
Certificate or Class S Certificate shall be deemed to represent that it is not a
Person specified in clauses (a) or (b) above. Any transfer, sale, pledge or
other disposition of any ERISA Restricted Certificates or Class S Certificates
that would constitute or result in a prohibited transaction under ERISA, Section
4975 of the Code or any Similar Law, or would otherwise violate the provisions
of this Section 5.02(c) shall be deemed absolutely null and void ab initio, to
the extent permitted under applicable law.
So long as any of the Class of Certificates remains outstanding,
each Master Servicer or the Special Servicer, as applicable, will make
available, or cause to be made available, upon request, to any Holder and any
Person to whom any such Certificate of any such Class of Certificates may be
offered or sold, transferred, pledged or otherwise disposed of by such Holder,
information with respect to such Master Servicer, the Special Servicer or the
Mortgage Loans necessary to the provision of an Opinion of Counsel described in
this Section 5.02(c).
(i) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Trustee under clause
(ii) below to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(A) (i) No Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Disqualified Organization or
agent thereof (including a nominee, middleman or similar person) (an
"Agent"), a Plan or a Person acting on behalf of or investing the
assets of a Plan, including any entity whose underlying assets
include Plan assets by reason of investment in the entity by such
Plan and the application of Department of Labor Regulations ss.
2510.3-101 (such Plan or Person, an "ERISA Prohibited Holder") or a
Non-U.S. Person and (ii) each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall be a Permitted
Transferee and in each case shall promptly notify the Master
Servicers, the Trustee and the Certificate Registrar of any change
or impending change to such status;
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit substantially in the form attached hereto as Exhibit D-1
(a "Transfer Affidavit") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing
and warranting, among other things, that such Transferee is a
Permitted Transferee and is not a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, and that
it has reviewed the provisions of this Section 5.02(c) and agrees to
be bound by them;
(C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (b) above, if the Certificate
Registrar has actual knowledge that the proposed Transferee is a
Disqualified Organization or Agent thereof, an ERISA Prohibited
Holder or a Non-U.S. Person or is not a Permitted Transferee, no
Transfer of an Ownership Interest in a Residual Certificate to such
proposed Transferee shall be effected; and
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar
a letter substantially in the form attached hereto as Exhibit D-2 (a
"Transferor Letter") certifying that, among other things, it has no
actual knowledge that such prospective Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person.
(ii) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(c), then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(c) shall be restored,
to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Co-Trustee, the Master Servicers,
the Authenticating Agent and the Certificate Registrar shall be under any
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by this Section 5.02(c) or for
making any payments due on such Certificate to the Holder thereof or for
taking any other action with respect to such Holder under the provisions
of this Agreement; provided, however, that the Certificate Registrar shall
be under such liability for a registration of Transfer of a Residual
Certificate if it has actual knowledge that the proposed Transferee is a
Disqualified Organization or Agent thereof, an ERISA Prohibited Holder or
a Non-U.S. Person in violation of Section 5.02(c)(i)(C) above or is not a
Permitted Transferee.
(iii) The Trustee shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions all
information in its possession and necessary to compute any tax imposed as
a result of the Transfer of an Ownership Interest in a Residual
Certificate to any Person who is a Disqualified Organization or Agent
thereof, including the information described in Treasury Regulations
Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Certificate.
(d) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange. Subject to the restrictions on transfer set forth in this Section 5.02
and Applicable Procedures, any Certificate Owner owning a beneficial interest in
a Non-Registered Certificate may cause the Certificate Registrar to request that
the Depository exchange such Certificate Owner's beneficial interest in a
Book-Entry for a Definitive Certificate or Certificates. Following a proper
request for transfer or exchange, the Certificate Registrar shall, within 5
Business Days of such request if made at such Registrar Office, or within 10
Business Days if made at the office of a transfer agent (other than the
Certificate Registrar), execute and deliver at such Registrar Office or at the
office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, a Definitive Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested. The presentation for transfer or exchange of any Definitive
Certificate shall not be valid unless made at the Registrar Office or at the
office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of 15 days preceding any Distribution Date.
(e) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate (other than a Definitive Certificate
issued in exchange for a Certificate representing an interest in the Class A-1,
Class A-1S, Class A-2, Class A-2S, Class A-2SFL, Class A-3, Class A-3S, Class
A-1A, Class A-M, Class A-MS, Class A-J, Class A-JFL, Class A-JS, Class B, Class
B-S, Class C, Class C-S, Class D, Class D-S, Class E, Class E-S, Class F, Class
F-S, Class G, Class G-S, Class H, Class H-S or Class X Certificates) or a
beneficial interest in a Book-Entry Certificate representing a Non-Registered
Certificate is being held by or for the benefit of a Person who is not an
Eligible Investor, or that such holding is unlawful under the laws of a relevant
jurisdiction, then the Certificate Registrar shall have the right to void such
transfer, if permitted under applicable law, or to require the investor to sell
such Definitive Certificate or beneficial interest in such Book-Entry
Certificate to an Eligible Investor within 14 days after notice of such
determination and each Certificateholder by its acceptance of a Certificate
authorizes the Certificate Registrar to take such action.
(f) The Certificate Registrar shall provide an updated copy of the
Certificate Register to the Trustee, the Master Servicers, the Special Servicer
and the Depositor upon written request.
(g) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02 except as provided below. In
connection with any transfer to an Institutional Accredited Investor, the
transferor shall reimburse the Trust Fund for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided herein) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
(h) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall hold such canceled Certificates in accordance with its standard
procedures.
(i) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments made or received under the Swap Contracts and payments to
Certificateholders of interest or original issue discount that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trustee shall indicate the amount withheld to such
Certificateholders. Such amounts shall be deemed to have been distributed to
such Certificateholders for all purposes of this Agreement.
(j) No transfer of any definitive Class A-2SFL or Class A-JFL
Certificate presented or surrendered for registration of transfer or exchange
shall be made unless the transfer or exchange is accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Trustee, duly
executed by such Certificateholder or his attorney duly authorized in writing
(with copies sent directly from such Certificateholders to each Swap
Counterparty). The Trustee shall promptly forward any such IRS Form received by
the Trustee to each Swap Counterparty. Each such Class A-2SFL and Class A-JFL
Certificateholder by its purchase of such a Certificate shall be deemed to
consent to any IRS Form being so forwarded.
Section 5.03 Book-Entry Certificates. (a) The Regular Certificates
shall initially be issued as one or more Certificates registered in the name of
the Depository or its nominee and, except as provided in subsection (c) below,
transfer of such Certificates may not be registered by the Certificate Registrar
unless such transfer is to a successor Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in Section 5.02(d) above or
subsection (c) below, shall not be entitled to Definitive Certificates in
respect of such Ownership Interests. All transfers by Certificate Owners of
their respective Ownership Interests in the Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures.
(b) The Trustee, the Master Servicers, the Special Servicer, the
Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to the Book-Entry
Certificates and (B) the Depositor is unable to locate a qualified successor, or
(ii) the Depositor at its option advises the Trustee and the Certificate
Registrar in writing that it elects to terminate the book-entry system through
the Depository, the Trustee shall notify the affected Certificate Owners,
through the Depository with respect to all, any Class or any portion of any
Class of the Certificates or (iii) the Certificate Registrar determines that
Definitive Certificates are required in accordance with the provisions of
Section 5.03(e), of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Certificate Registrar of the Book-Entry Certificates by the
Depository or any custodian acting on behalf of the Depository, accompanied by
registration instructions from the Depository for registration of transfer, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver, within 5 Business Days of such request if made at the
Registrar Office, or within 10 Business Days if made at the office of a transfer
agent (other than the Certificate Registrar), the Definitive Certificates to the
Certificate Owners identified in such instructions. None of the Depositor, the
Master Servicers, the Trustee, the Special Servicer, the Authenticating Agent
and the Certificate Registrar shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates for purposes of
evidencing ownership of any Class of Certificates, the registered Holders of
such Definitive Certificates shall be recognized as Certificateholders hereunder
and, accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
the Certificate Registrar for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) If the Trustee has instituted, or if the Special Servicer or a
Master Servicer, on the Trustee's behalf, has been directed to institute, any
judicial proceeding in a court to enforce the rights of the Certificateholders
under the Certificates, and the Trustee has been advised by counsel that in
connection with such proceeding it is necessary or appropriate for the Trustee
to obtain possession of all or any portion of the Certificates evidenced by
Book-Entry Certificates, the Trustee may in its sole discretion determine that
such Certificates shall no longer be represented by such Book-Entry
Certificates. In such event, the Certificate Registrar will execute, the
Authenticating Agent will authenticate and the Certificate Registrar will
deliver, in exchange for such Book-Entry Certificates, Definitive Certificates
in a Denomination equal to the aggregate Denomination of such Book-Entry
Certificates to the party so requesting such Definitive Certificates. In such
event, the Certificate Registrar shall notify the affected Certificate Owners
and make appropriate arrangements for the effectuation of the purpose of this
clause.
(f) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(g) If a Holder of a Definitive Certificate (other than a Definitive
Certificate that is a Class S Certificate) wishes at any time to transfer such
Certificate to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Book-Entry Certificate, such transfer may be effected
only in accordance with Applicable Procedures, Section 5.02(b) and this Section
5.03(g). Upon receipt by the Certificate Registrar at the Registrar Office of
(i) the Definitive Certificate to be transferred with an assignment and transfer
pursuant to Section 5.02(a), and all required items pursuant to Section
5.02(b)(v), the Certificate Registrar shall cancel such Definitive Certificate,
execute and deliver a new Definitive Certificate for the Denomination of the
Definitive Certificate not so transferred, registered in the name of the Holder
or the Holder's transferee (as instructed by the Holder), and the Certificate
Registrar as custodian of the Book-Entry Certificates shall increase the
Denomination of the related Book-Entry Certificate by the Denomination of the
Definitive Certificate to be so transferred, and credit or cause to be credited
to the account of the Person specified in such instructions a corresponding
Denomination of such Book-Entry Certificate.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates. If
(i) any mutilated Certificate is surrendered to the Certificate Registrar, or
the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (ii) there is delivered to the
Trustee and the Certificate Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of actual
notice to the Trustee or the Certificate Registrar that such Certificate has
been acquired by a bona fide purchaser, the Certificate Registrar shall execute,
and the Authenticating Agent shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of the same Class and of like Percentage Interest. Upon the issuance
of any new Certificate under this Section, the Trustee and the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership in
the Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
Section 5.05 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Master Servicers,
the Special Servicer, the Trustee, the Certificate Registrar and any agents of
any of them may treat the person in whose name such Certificate is registered as
the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 4.01 and for all other purposes whatsoever, except as and to
the extent provided in the definition of "Certificateholder," and none of the
Depositor, the Master Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any agent of any of them shall be affected by notice
to the contrary except as provided in Section 5.02(d).
Section 5.06 Certificate Ownership Certification. To the extent that
under the terms of this Agreement, it is necessary to determine whether any
Person is a Certificate Owner, the Trustee shall make such determination based
on a certificate of such Person which shall be addressed to the Trustee and
shall specify, in reasonable detail satisfactory to the Trustee, such Person's
name and address, the Class and Certificate Balance or Notional Amount of the
Regular Certificate beneficially owned, and any intermediaries through which
such Person's interest in such Regular Certificate is held (any such
certification, other than one which the Trustee shall refuse to recognize
pursuant to the following procedures, a "Certificate Ownership Certification");
provided, however, that the Trustee shall not knowingly recognize such Person as
a Certificate Owner if such Person, to the actual knowledge of a Responsible
Officer of such party, acquired its interest in a Regular Certificate in
violation of the transfer restrictions herein, or if such Person's certification
that it is a Certificate Owner is in direct conflict with information obtained
by the Trustee from the Depository or any Depository Participant with respect to
the identity of a Certificate Owner; provided, however, that to the extent the
Trustee is required to obtain such Certificate Owner information from the
Depository or any Depository Participant, the Trustee shall be reimbursed for
any cost or expense in obtaining such information from the Distribution Account.
The Trustee may conclusively rely on such Certificate Ownership Certification.
Each Master Servicer will only be required to acknowledge the status of any
Person as a Certificateholder or Certificate Owner to the extent that the
Trustee, at the request of such Master Servicer, identifies such Person as a
Certificateholder or Certificate Owner.
[End of Article V]
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS,
THE SPECIAL SERVICER AND
THE DIRECTING CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Master Servicers and
the Special Servicer. The Depositor, the Master Servicers and the Special
Servicer shall be liable in accordance herewith only to the extent of the
respective obligations specifically imposed upon and undertaken by the
Depositor, the Master Servicers and the Special Servicer herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Master Servicers or the Special Servicer. (a) Subject to subsection (b)
below, the Depositor, the Master Servicers and the Special Servicer each will
keep in full effect its existence, rights and franchises as an entity under the
laws of the jurisdiction of its incorporation or organization, and each will
obtain and preserve its qualification to do business as a foreign entity in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
(b) The Depositor, the Master Servicers and the Special Servicer
each may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets (which may be limited to all or substantially
all of its assets related to commercial mortgage loan servicing) to any Person,
in which case any Person resulting from any merger or consolidation to which the
Depositor, any Master Servicer or the Special Servicer shall be a party, or any
Person succeeding to the business of the Depositor, any Master Servicer or the
Special Servicer, shall be the successor of the Depositor, any Master Servicer
and the Special Servicer, as the case may be, hereunder, without the execution
or filing of any paper (other than an assumption agreement wherein the successor
shall agree to perform the obligations of and serve as the Depositor, the
applicable Master Servicer or the Special Servicer, as the case may be, in
accordance with the terms of this Agreement) or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that such merger, consolidation or succession will not result
in a withdrawal, downgrading or qualification of the then-current ratings of the
Classes of Certificates that have been so rated (as evidenced by a letter to
such effect from each Rating Agency).
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicers, the Special Servicer and Others. (a) None of the Depositor, the
Master Servicers, the Special Servicer and their respective Affiliates or any of
the directors, officers, employees or agents of any of the foregoing shall be
under any liability to the Trust, the Certificateholders or the Companion
Holders for any action taken or for refraining from the taking of any action in
good faith pursuant to this Agreement, or for errors in judgment; provided,
however, that this provision shall not protect the Depositor, the Master
Servicers, the Special Servicer and their respective Affiliates or any such
Person against any breach of warranties or representations made herein or any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or negligence in the performance of duties or by reason of negligent
disregard of obligations and duties hereunder. The Depositor, the Master
Servicers and the Special Servicer and their respective Affiliates and any
director, officer, member, manager, employee or agent of the Depositor, such
Master Servicer or the Special Servicer and their respective Affiliates may rely
on any document of any kind which, prima facie, is properly executed and
submitted by any Person respecting any matters arising hereunder. The Depositor,
the Master Servicers (including in their capacities as Companion Paying Agents),
the Special Servicer and their respective Affiliates and any director, officer,
employee or agent of any of the foregoing shall be indemnified and held harmless
by the Trust against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments, and any other costs,
liabilities, fees and expenses incurred in connection with any legal action
(whether in equity or at law) or claim relating to this Agreement, the Mortgage
Loans, the Companion Loans or the Certificates, other than any loss, liability
or expense: (i) specifically required to be borne thereby pursuant to the terms
hereof; (ii) incurred in connection with any breach of a representation or
warranty made by it herein; (iii) incurred by reason of bad faith, willful
misconduct or negligence in the performance of its obligations or duties
hereunder, or by reason of negligent disregard of such obligations or duties; or
(iv) in the case of the Depositor and any of its directors, officers, employees
and agents, incurred in connection with any violation by any of them of any
state or federal securities law. Each of the Master Servicers and the Special
Servicer may rely, and shall be protected in acting or refraining from acting
upon, any resolution, officer's certificate, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, financial statement, agreement, appraisal, bond or other
document (in electronic or paper format) as contemplated by and in accordance
with this Agreement and reasonably believed or in good faith believed by such
Master Servicer or the Special Servicer to be genuine and to have been signed or
presented by the proper party or parties and each of them may consult with
counsel, in which case any written advice of counsel or Opinion of Counsel shall
be full and complete authorization and protection with respect to any action
taken or suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel.
(b) None of the Depositor, the Master Servicers and the Special
Servicer shall be under any obligation to appear in, prosecute or defend any
legal or administrative action (whether in equity or at law), proceeding,
hearing or examination that is not incidental to its respective duties under
this Agreement or which in its opinion may involve it in any expense or
liability not recoverable from the Trust Fund; provided, however, that the
Depositor, each Master Servicer or the Special Servicer may in its discretion
undertake any such action, proceeding, hearing or examination that it may deem
necessary or desirable in respect to this Agreement and the rights and duties of
the parties hereto and the interests of the Certificateholders hereunder. In
such event, the legal expenses and costs of such action, proceeding, hearing or
examination and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, each Master Servicer and the
Special Servicer shall be entitled to be reimbursed therefor out of amounts
attributable to the Mortgage Loans and Companion Loans on deposit in the
Certificate Accounts, as provided by Section 3.05(a).
(c) Each of the Master Servicers and the Special Servicer agrees to
indemnify the Depositor, the Trustee, the Co-Trustee, the Companion Holders with
respect to Serviced Whole Loans and the Trust and any director, officer,
employee or agent thereof, and hold them harmless, from and against any and all
claims, losses, penalties, fines, forfeitures, reasonable legal fees and related
costs, judgments, and any other costs, liabilities, fees and expenses that any
of them may sustain arising from or as a result of any willful misfeasance, bad
faith or negligence of such Master Servicer or the Special Servicer, as the case
may be, in the performance of its obligations and duties under this Agreement or
by reason of negligent disregard by such Master Servicer or the Special
Servicer, as the case may be, of its duties and obligations hereunder or by
reason of breach of any representations or warranties made herein; provided that
such indemnity shall not cover indirect or consequential damages. The Trustee,
the Co-Trustee or the Depositor, as the case may be, shall immediately notify
the applicable Master Servicer or the Special Servicer, as applicable, if a
claim is made by a third party with respect to this Agreement or the Mortgage
Loans entitling the Trust to indemnification hereunder, whereupon such Master
Servicer or the Special Servicer, as the case may be, shall assume the defense
of such claim (with counsel reasonably satisfactory to the Trustee, the
Co-Trustee or the Depositor) and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim. Any
failure to so notify the applicable Master Servicer or the Special Servicer, as
the case may be, shall not affect any rights any of the foregoing Persons may
have to indemnification under this Agreement or otherwise, unless such Master
Servicer's, or the Special Servicer's, as the case may be, defense of such claim
is materially prejudiced thereby.
(d) Each of the Trustee and the Co-Trustee, respectively (and not
jointly and severally) agrees to indemnify each Master Servicer and the Special
Servicer and any director, officer, employee or agent thereof, and hold them
harmless, from and against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses that any of them may sustain arising from
or as a result of any willful misfeasance, bad faith or negligence of the
Trustee or the Co-Trustee, respectively, in the performance of its obligations
and duties under this Agreement or by reason of negligent disregard by the
Trustee or the Co-Trustee, respectively, of its duties and obligations hereunder
or by reason of breach of any representations or warranties made herein;
provided, that such indemnity shall not cover indirect or consequential damages.
Each Master Servicer or the Special Servicer, as the case may be, shall
immediately notify the Trustee or the Co-Trustee, as applicable, if a claim is
made by a third party with respect to this Agreement, whereupon the Trustee or
the Co-Trustee, as applicable, shall assume the defense of such claim (with
counsel reasonably satisfactory to the Master Servicers or the Special Servicer)
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. Any failure to so notify the
Trustee or the Co-Trustee shall not affect any rights any of the foregoing
Persons may have to indemnification under this Agreement or otherwise, unless
the Trustee's or Co-Trustee's defense of such claim is materially prejudiced
thereby.
(e) The Depositor agrees to indemnify each Master Servicer and the
Special Servicer and any director, officer, employee or agent thereof, and hold
them harmless, from and against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses that any of them may sustain arising from
or as a result of any willful misfeasance, bad faith or negligence of the
Depositor, in the performance of its obligations and duties under this Agreement
or by reason of negligent disregard by the Depositor of its duties and
obligations hereunder or by reason of breach of any representations or
warranties made herein; provided, that such indemnity shall not cover indirect
or consequential damages. Each Master Servicer or the Special Servicer, as the
case may be, shall immediately notify the Depositor if a claim is made by a
third party with respect to this Agreement, whereupon the Depositor shall assume
the defense of such claim (with counsel reasonably satisfactory to the Master
Servicers or the Special Servicer) and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim. Any
failure to so notify the Depositor shall not affect any rights any of the
foregoing Persons may have to indemnification under this Agreement or otherwise,
unless the Depositor's defense of such claim is materially prejudiced thereby.
(f) The master servicer, special servicer, depositor and trustee
under each Non-Serviced Pooling Agreement, and any of their respective
directors, officers, employees or agents (collectively, the "Non-Serviced
Indemnified Parties"), shall be indemnified by the Trust and held harmless
against the Trust's pro rata share (subject to the related Intercreditor
Agreement) of any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses incurred in connection with any legal
action relating to the related Non-Serviced Mortgage Loan under the related
Non-Serviced Pooling Agreement or this Agreement, reasonably requiring the use
of counsel or the incurring of expenses, other than any losses incurred by
reason of any Non-Serviced Indemnified Party's willful misfeasance, bad faith or
negligence in the performance of its duties or by reason of negligent disregard
of its obligations and duties under the related Non-Serviced Pooling Agreement
or the related Intercreditor Agreement. The indemnification provided in this
Section 6.03 shall survive the termination of this Agreement and the termination
or resignation of each Master Servicer, the Trustee, the Co-Trustee and the
Special Servicer.
Section 6.04 Master Servicers and Special Servicer Not to Resign.
Subject to the provisions of Section 6.02, neither the Master Servicers nor the
Special Servicer shall resign from their respective obligations and duties
hereby imposed on each of them except upon (a) determination that such party's
duties hereunder are no longer permissible under applicable law or (b) in the
case of each Master Servicer, upon the appointment of, and the acceptance of
such appointment by, a successor Master Servicer and receipt by the Trustee of
written confirmation from each applicable Rating Agency that such resignation
and appointment will not cause such Rating Agency to downgrade, withdraw or
qualify any of the then current ratings assigned by such Rating Agency to any
Class of Certificates or any class of Companion Loan Securities. Only the
applicable Master Servicer shall be permitted to resign pursuant to clause (b)
above. Any such determination permitting the resignation of any Master Servicer
or the Special Servicer pursuant to clause (a) above shall be evidenced by an
Opinion of Counsel (at the expense of the resigning party) to such effect
delivered to the Trustee and the Directing Certificateholder. No such
resignation by any Master Servicer or the Special Servicer shall become
effective until the Trustee or a successor Master Servicer or successor Special
Servicer, as applicable, shall have assumed such Master Servicer's or Special
Servicer's, as applicable, responsibilities and obligations in accordance with
Section 7.02. Upon any termination or resignation of any Master Servicer
hereunder, such Master Servicer shall have the right and opportunity to appoint
any successor Master Servicer with respect to this Section 6.04, provided that
such successor Master Servicer is approved by the Directing Certificateholder,
such approval not to be unreasonably withheld.
Section 6.05 Rights of the Depositor in Respect of the Master
Servicers and the Special Servicer. The Depositor may, but is not obligated to,
enforce the obligations of each Master Servicer and the Special Servicer
hereunder and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of any Master Servicer and the Special
Servicer hereunder or exercise the rights of any Master Servicer or Special
Servicer, as applicable, hereunder; provided, however, that each Master Servicer
and the Special Servicer shall not be relieved of any of their respective
obligations hereunder by virtue of such performance by the Depositor or its
designee. The Depositor shall not have any responsibility or liability for any
action or failure to act by each Master Servicer or the Special Servicer and is
not obligated to supervise the performance of each Master Servicer or the
Special Servicer under this Agreement or otherwise.
Section 6.06 The Master Servicers and the Special Servicer as
Certificate Owner. Each Master Servicer, the Special Servicer or any Affiliate
thereof may become the Holder of (or, in the case of a Book-Entry Certificate,
Certificate Owner with respect to) any Certificate with (except as otherwise set
forth in the definition of "Certificateholder") the same rights it would have if
it were not a Master Servicer, the Special Servicer or an Affiliate thereof.
Section 6.07 The Directing Certificateholder. The Directing
Certificateholder shall be entitled to advise (1) the Special Servicer with
respect to all Specially Serviced Mortgage Loans, (2) the Special Servicer and
the applicable Master Servicer with respect to Non-Specially Serviced Mortgage
Loans as to which such Master Servicer must obtain the consent or deemed consent
of the Special Servicer, and (3) the Special Servicer with respect to all
Mortgage Loans for which an extension of maturity is being considered by the
Special Servicer or by the applicable Master Servicer subject to consent or
deemed consent of the Special Servicer, and notwithstanding anything herein to
the contrary, except as set forth in, and in any event subject to, Section
3.08(f) and the second and third paragraphs of this Section 6.07, the applicable
Master Servicer or Special Servicer, as the case may be, shall not be permitted
to take any of the following actions as to which the Directing Certificateholder
has objected in writing within ten (10) Business Days of being notified thereof
(provided that if such written objection has not been received by such Master
Servicer or the Special Servicer, as applicable, within such ten (10) Business
Day period, then the Directing Certificateholder will be deemed to have waived
its right to object):
(i) any proposed or actual foreclosure upon or comparable conversion
(which may include acquisitions of an REO Property) of the ownership of
properties securing such of the Mortgage Loans as come into and continue
in default;
(ii) any modification, consent to a modification or waiver of a
monetary term or material non-monetary term (including, without
limitation, the timing of payments and acceptance of discounted payoffs)
of a Mortgage Loan or any extension of the maturity date of any Mortgage
Loan;
(iii) any sale of a Defaulted Mortgage Loan or REO Property (other
than in connection with the termination of the Trust Fund) for less than
the applicable Purchase Price;
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any release of collateral or any acceptance of substitute or
additional collateral for a Mortgage Loan, or any consent to either of the
foregoing, other than required pursuant to the specific terms of the
related Mortgage Loan; provided that in the case of the release of that
certain property contemplated by Section 3.34(b) from the College Green
Mortgage Loan, any consent rights of the Directing Certificateholder shall
be subject to the same limitations applicable to Master Servicer No.1 or
the Special Servicer, as the case may be, in approving such release as set
forth in the third sentence of Section 3.34(b);
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to a Mortgage Loan or any consent to such waiver or consent
to a transfer of the Mortgaged Property or interests in the borrower or
consent to the incurrence of additional debt, other than any such transfer
or incurrence of debt as may be effected without the consent of the lender
under the related loan agreement;
(vii) any property management company changes or franchise changes
with respect to a Mortgage Loan with a principal balance greater than
$2,500,000 for which such Master Servicer is required to consent or
approve;
(viii) releases of any escrows, reserve accounts or letters of
credit held as performance escrows or reserves, other than those required
pursuant to the specific terms of the Mortgage Loans with no material
lender discretion (and for the sake of clarity it is understood that any
release of the escrows, reserve accounts or letters of credit held as
performance escrows or reserves for the Mortgage Loans on Exhibit EE shall
require review and consent by the Special Servicer and the Directing
Certificateholder);
(ix) any acceptance of an assumption agreement releasing a Mortgagor
from liability under a Mortgage Loan other than pursuant to the specific
terms of such Mortgage Loan; and
(x) any determination by the Special Servicer of an Acceptable
Insurance Default;
provided that, in the event that the Special Servicer or the applicable Master
Servicer (in the event such Master Servicer is otherwise authorized by this
Agreement to take such action), as applicable, determines that immediate action
is necessary to protect the interests of the Certificateholders (as a collective
whole), the Special Servicer or such Master Servicer, as applicable may take any
such action without waiting for the Directing Certificateholder's response.
In addition, the Directing Certificateholder, subject to any rights,
if any, of the related Companion Holder to advise the Special Servicer with
respect to the related Serviced Whole Loan pursuant to the terms of the related
Intercreditor Agreement, may direct the Special Servicer to take, or to refrain
from taking, such other actions with respect to a Mortgage Loan, as the
Directing Certificateholder may deem advisable or as to which provision is
otherwise made herein; provided that notwithstanding anything herein to the
contrary, no such direction, and no objection contemplated by the preceding
paragraph, may require or cause the Special Servicer to violate any provision of
any Mortgage Loan, applicable law, this Agreement or the REMIC Provisions,
including without limitation the Special Servicer's obligation to act in
accordance with the Servicing Standards, or expose each Master Servicer, the
Special Servicer, the Trust Fund, the Co-Trustee or the Trustee to liability, or
materially expand the scope of the Special Servicer's responsibilities hereunder
or cause the Special Servicer to act, or fail to act, in a manner which in the
reasonable judgment of the Special Servicer is not in the best interests of the
Certificateholders.
In the event the Special Servicer or any Master Servicer, as
applicable, determines that a refusal to consent by the Directing
Certificateholder or any advice from the Directing Certificateholder would
otherwise cause the Special Servicer or such Master Servicer, as applicable, to
violate the terms of any Mortgage Loan, applicable law, or the other provisions
of this Agreement, including without limitation, the Servicing Standards, the
Special Servicer or such Master Servicer, as applicable, shall disregard such
refusal to consent or advise and notify the Directing Certificateholder, the
Trustee and the Rating Agencies of its determination, including a reasonably
detailed explanation of the basis therefor. The taking of, or refraining from
taking, any action by the applicable Master Servicer or Special Servicer in
accordance with the direction of or approval of the Directing Certificateholder
that does not violate any law or the Servicing Standards or the other provisions
of this Agreement, will not result in any liability on the part of the
applicable Master Servicer or the Special Servicer.
The Directing Certificateholder shall have no liability to the Trust
Fund or the Certificateholders for any action taken, or for refraining from the
taking of any action, or for errors in judgment; provided, however, that the
Directing Certificateholder shall not be protected against any liability to a
Controlling Class Certificateholder that would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of reckless disregard of obligations or duties. By its acceptance of a
Certificate, each Certificateholder acknowledges and agrees that the Directing
Certificateholder may take actions that favor the interests of one or more
Classes of the Certificates including the Holders of the Controlling Class, over
other Classes of the Certificates, and that the Directing Certificateholder may
have special relationships and interests that conflict with those of Holders of
some Classes of the Certificates, that the Directing Certificateholder may act
solely in the interests of the Holders of the Controlling Class, that the
Directing Certificateholder does not have any duties or liability to the Holders
of any Class of Certificates, other than the Controlling Class, that the
Directing Certificateholder shall not be liable to any Certificateholder, by
reason of its having acted solely in the interests of the Holders of the
Controlling Class, and that the Directing Certificateholder shall have no
liability whatsoever for having so acted, and no Certificateholder may take any
action whatsoever against the Directing Certificateholder or any director,
officer, employee, agent or principal thereof for having so acted.
[End of Article VI]
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Master Servicer and Special Servicer
Termination. (a) "Event of Default," wherever used herein, means any one of the
following events:
(i) (A) any failure by the applicable Master Servicer to make any
deposit required to be made by that Master Servicer to the Certificate
Account on the day and by the time such deposit is required to be made
under the terms of this Agreement, which failure is not remedied within
one Business Day or (B) any failure by the applicable Master Servicer to
deposit into, or remit to the Trustee, for deposit into, any Distribution
Account or any failure of the applicable Master Servicer to deposit into
the related Companion Distribution Account any amount required to be so
deposited or remitted, which failure in either case is not remedied by
11:00 a.m. (New York City time) on the relevant Distribution Date; or
(ii) any failure by the Special Servicer to deposit into the REO
Account, within two Business Days after such deposit is required to be
made or to remit to the applicable Master Servicer for deposit into the
Certificate Account or to deposit into, or to remit to the Trustee for
deposit into, the Lower-Tier Distribution Account any amount required to
be so deposited or remitted by the Special Servicer pursuant to, and at
the time specified by, the terms of this Agreement; or
(iii) any failure on the part of the applicable Master Servicer or
the Special Servicer duly to observe or perform in any material respect
any of its other covenants or obligations contained in this Agreement
which continues unremedied for a period of 30 days (5 Business Days in the
case of a Master Servicer's or Special Servicer's obligations under
Article XI hereof required to fulfill Exchange Act reporting requirements
during any period that the Trust is subject to the reporting requirements
of the Exchange Act (and 30 days in the case of each Master Servicer and
Special Servicer during any period that the Trust is not subject to the
reporting requirements of the Exchange Act), 15 days in the case of the
applicable Master Servicer's failure to make a Servicing Advance or 15
days in the case of a failure to pay the premium for any insurance policy
required to be maintained hereunder) after the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given (A) to the applicable Master Servicer or the Special Servicer, as
the case may be, by any other party hereto, or (B) to the applicable
Master Servicer or the Special Servicer, as the case may be, with a copy
to each other party to this Agreement, by the Holders of Certificates
evidencing Percentage Interests aggregating not less than 25%, or with
respect to a Serviced Mortgage Loan, by the holder of the related
Companion Loan; provided, however, if such failure is capable of being
cured and the applicable Master Servicer or Special Servicer, as
applicable, is diligently pursuing such cure, such 30-day period will be
extended an additional 30 days; or
(iv) any breach on the part of the applicable Master Servicer or the
Special Servicer of any representation or warranty contained in Section
3.23 or Section 3.24, as applicable, which materially and adversely
affects the interests of any Class of Certificateholders or Companion
Holders (excluding the holder of any Skyline Portfolio Pari Passu
Companion Loan, the holder of the Solana Pari Passu Companion Loan and the
holder of any Americold Pool 2 Pari Passu Companion Loan) and which
continues unremedied for a period of 30 days after the date on which
notice of such breach, requiring the same to be remedied, shall have been
given to the Master Servicers or the Special Servicer, as the case may be,
by the Depositor or the Trustee, or to the Master Servicers, the Special
Servicer, the Depositor and the Trustee by the Holders of Certificates
evidencing Percentage Interests aggregating not less than 25% or, solely
as it relates to the servicing of a Serviced Whole Loan, by the related
Companion Holders; provided, however, if such breach is capable of being
cured and the applicable Master Servicer or Special Servicer, as the case
may be, is diligently pursuing such cure, such 30-day period will be
extended an additional 30 days; or
(v) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the applicable Master Servicer or the Special Servicer and such decree or
order shall have remained in force undischarged, undismissed or unstayed
for a period of 60 days; or
(vi) the applicable Master Servicer or the Special Servicer shall
consent to the appointment of a conservator, receiver, liquidator, trustee
or similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating
to such Master Servicer or the Special Servicer or of or relating to all
or substantially all of its property; or
(vii) the applicable Master Servicer or the Special Servicer shall
admit in writing its inability to pay its debts generally as they become
due, file a petition to take advantage of any applicable bankruptcy,
insolvency or reorganization statute, make an assignment for the benefit
of its creditors, voluntarily suspend payment of its obligations or take
any corporate action in furtherance of the foregoing; or
(viii) Moody's places its ratings of any Class of Certificates on a
"watch" status in contemplation of a ratings downgrade or withdrawal,
citing servicing or special servicing concerns, as applicable, as the sole
or a material factor in such rating action (and such "watch" status is not
rescinded within 60 days (or such longer period as would not, as confirmed
by such Rating Agency in writing, result in a qualification, downgrade or
withdrawal of one or more ratings assigned by such Rating Agency to the
Certificates); or
(ix) Moody's downgrades the then current ratings of any Class of
Certificates, citing servicing or special servicing concerns, as
applicable, as the sole or a material factor in such downgrade; or
(x) the applicable Master Servicer or the Special Servicer is no
longer listed on S&P's Select Servicer List as a U.S. Commercial Mortgage
Master Servicer or a U.S. Commercial Mortgage Special Servicer, as
applicable, and is not reinstated to S&P's Select Servicer List within 60
days of such removal; or
(xi) the applicable Master Servicer or the Special Servicer is no
longer rated at least "CMS3" or "CSS3", respectively, by Fitch and such
Master Servicer or Special Servicer is not reinstated to that rating
within 30 days of the delisting.
(b) If any Event of Default with respect to any Master Servicer or
the Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as such Event of Default shall not have been remedied, the
Trustee or the Depositor may, and at the written direction (of the Directing
Certificateholder) or the Holders of Certificates entitled to at least 51% of
the Voting Rights, the Trustee shall, terminate, by notice in writing to the
Defaulting Party, with a copy of such notice to the Depositor, all of the rights
(subject to Section 3.11 and Section 6.03) and obligations of the Defaulting
Party under this Agreement and in and to the Mortgage Loans and the proceeds
thereof (other than as a Certificateholder or Companion Holder, if applicable);
provided, however, that the Defaulting Party shall be entitled to the payment of
accrued and unpaid compensation and reimbursement through the date of such
termination as provided for under this Agreement for services rendered and
expenses incurred. From and after the receipt by the Defaulting Party of such
written notice except as otherwise provided in this Article VII, all authority
and power of the Defaulting Party under this Agreement, whether with respect to
the Certificates (other than as a Holder of any Certificate) or the Mortgage
Loans or otherwise, shall pass to and be vested in the Co-Trustee with respect
to a termination of any Master Servicer or the Trustee with respect to a
termination of the Special Servicer pursuant to and under this Section, and,
without limitation, the Trustee or the Co-Trustee, as applicable, is hereby
authorized and empowered to execute and deliver, on behalf of and at the expense
of the Defaulting Party, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the Mortgage
Loans and related documents, or otherwise. Each Master Servicer and Special
Servicer each agree that if it is terminated pursuant to this Section 7.01(b),
it shall promptly (and in any event no later than 20 Business Days subsequent to
its receipt of the notice of termination) provide the Trustee or the Co-Trustee,
as applicable, with all documents and records requested by it to enable it to
assume the applicable Master Servicer's or the Special Servicer's, as the case
may be, functions hereunder, and shall cooperate with the Trustee or the
Co-Trustee, as applicable, in effecting the termination of such Master
Servicer's or the Special Servicer's, as the case may be, responsibilities and
rights (subject to Section 3.11 and Section 6.03) hereunder, including, without
limitation, the transfer within 5 Business Days to the Trustee, the Co-Trustee
or the applicable Master Servicer, as applicable, for administration by it of
all cash amounts which shall at the time be or should have been credited by such
Master Servicer to the applicable Certificate Account or any Servicing Account
(if it is the Defaulting Party) or by the Special Servicer to the REO Account
(if it is the Defaulting Party) or thereafter be received with respect to the
Mortgage Loans or any REO Property (provided, however, that each Master Servicer
and the Special Servicer each shall, if terminated pursuant to this Section
7.01(b), continue to be entitled to receive all amounts accrued or owing to it
under this Agreement on or prior to the date of such termination, whether in
respect of Advances (in the case of the Special Servicer or the applicable
Master Servicer) or otherwise, and it and its Affiliates and the directors,
managers, officers, members, employees and agents of it and its Affiliates shall
continue to be entitled to the benefits of Section 3.11 and Section 6.03
notwithstanding any such termination).
(c) If any Master Servicer receives notice of termination solely due
to an Event of Default under Section 7.01(b) solely due to an Event of Default
under Section 7.01(a)(viii) through (xi) and if such Master Servicer to be
terminated pursuant to Section 7.01(b) provides the Trustee with the appropriate
"request for proposal" materials within five (5) Business Days following such
termination notice, then such Master Servicer shall continue to service as
Master Servicer hereunder until a successor Master Servicer is selected in
accordance with this Section 7.01(c). Upon receipt of the "request for proposal"
materials, Trustee shall promptly thereafter (using such "request for proposal"
materials provided by such Master Servicer pursuant to Section 7.01(b)) solicit
good faith bids for the rights to service the Mortgage Loans and Companion Loans
under this Agreement from at least three (3) Persons qualified to act as Master
Servicer hereunder in accordance with Sections 6.02 and 7.02 (any such Person so
qualified, a "Qualified Bidder") or, if three (3) Qualified Bidders cannot be
located, then from as many persons as the Trustee can determine are Qualified
Bidders; provided that, at the Trustee's request, the applicable Master Servicer
shall supply the Trustee with the names of Persons from whom to solicit such
bids; and provided, further, that the Trustee shall not be responsible if less
than three (3) or no Qualified Bidders submit bids for the right to service the
Mortgage Loans and Companion Loans under this Agreement. The bid proposal shall
require any Successful Bidder (as defined below), as a condition of such bid, to
enter into this Agreement as successor Master Servicer, and to agree to be bound
by the terms hereof, including but not limited to Section 3.11, within 45 days
after the notice of termination of the applicable Master Servicer. The materials
provided to the Trustee shall provide for soliciting bids: (i) on the basis of
such successor Master Servicer retaining all Sub-Servicers to continue the
primary servicing of the Mortgage Loans and Companion Loans pursuant to the
terms of the respective Sub-Servicing Agreements (each, a "Servicing-Retained
Bid"); and (ii) on the basis of terminating each Sub-Servicing Agreement and
Sub-Servicer that it is permitted to terminate in accordance with Section 3.22
(each, a "Servicing-Released Bid"). The Trustee shall select the Qualified
Bidder with the highest cash Servicing-Retained Bid (or, if none, the highest
cash Servicing-Released Bid) (the "Successful Bidder") to act as successor
Master Servicer hereunder; provided, however, that if the Trustee does not
receive confirmation in writing by each Rating Agency that the appointment of
such Successful Bidder as successor Master Servicer will not result in the
withdrawal, downgrade, or qualification of the rating assigned by the Rating
Agency to any Class of Certificates or class of Companion Loan Securities within
10 days after the selection of such Successful Bidder, then the Trustee shall
repeat the bid process described above (but subject to the above-described
45-day time period) until such confirmation is obtained. The Trustee shall
direct the Successful Bidder to enter into this Agreement as successor Master
Servicer pursuant to the terms hereof no later than 45 days after notice of the
termination of the applicable Master Servicer.
Upon the assignment and acceptance of master servicing rights
hereunder (subject to the terms of Section 3.11) to and by the Successful
Bidder, the Trustee shall remit or cause to be remitted (i) if the successful
bid was a Servicing-Retained Bid, to the applicable Master Servicer to be
terminated pursuant to Section 7.01(b), the amount of such cash bid received
from the Successful Bidder (net of "out-of-pocket" expenses incurred in
connection with obtaining such bid and transferring servicing) and (ii) if the
successful bid was a Servicing-Released Bid, to the Master Servicer and each
terminated Sub-Servicer its respective Bid Allocation.
The applicable Master Servicer to be terminated pursuant to Section
7.01(b) shall be responsible for all out-of-pocket expenses incurred in
connection with the attempt to sell its rights to service the Mortgage Loans,
which expenses are not reimbursed to the party that incurred such expenses
pursuant to the preceding paragraph.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within the above-described time period or no
Successful Bidder was identified within the above-described time period, the
applicable Master Servicer to be terminated pursuant to Section 7.01(b) shall
reimburse the Trustee for all reasonable "out-of-pocket" expenses incurred by
the Trustee in connection with such bid process and the Trustee shall have no
further obligations under this Section 7.01(c). The Trustee thereafter may act
or may select a successor to act as Master Servicer hereunder in accordance with
Section 7.02.
Notwithstanding Section 7.01(b) and Section 7.04, if (i) an Event of
Default on the part of the applicable Master Servicer remains unremedied and
materially and adversely affects only a 000 Xxxxxxxxx Xxxxxx Pari Passu
Companion Loan, (ii) the applicable Master Servicer (as Companion Paying Agent)
fails to make any payment on a 000 Xxxxxxxxx Xxxxxx Pari Passu Companion Loan by
the third Business Day following the date required under the terms of this
Agreement, which failure has not been remedied or (iii) any qualification,
downgrade or withdrawal by any Rating Agency of any class of 000 Xxxxxxxxx
Xxxxxx Companion Loan Securities occurs solely as a result of an action of the
applicable Master Servicer, then the applicable Master Servicer may not be
terminated but the holder of the related 000 Xxxxxxxxx Xxxxxx Pari Passu
Companion Loan, as applicable, or the related trustee under the Other Pooling
and Servicing Agreement, acting at the direction of the related controlling
class representative for that securitization, shall be entitled to direct the
Trustee to require the applicable Master Servicer to appoint a sub-servicer
solely with respect to the related Serviced Whole Loan (or if the related
Serviced Whole Loan is currently being sub-serviced, to replace the current
sub-servicer, but only if such original sub-servicer is in default under the
related sub-servicing agreement). The appointment (or replacement) of a
sub-servicer with respect to the 000 Xxxxxxxxx Xxxxxx Whole Loan shall in any
event be subject to confirmation from each rating agency that such appointment
would not result in the downgrade, withdrawal or qualification of the then
current ratings on any class of outstanding Certificates and any class of
Companion Loan Securities. A sub-servicer for the related Serviced Whole Loan
shall be selected by the 000 Xxxxxxxxx Xxxxxx Controlling Holder; provided that
if the 000 Xxxxxxxxx Xxxxxx Controlling Holder is unable to agree on a
sub-servicer within 45 days after the date on which the Trustee was directed to
appoint a sub-servicer or replace the current sub-servicer, such sub-servicer
shall be selected by the Directing Certificateholder. Any such sub-servicer
under this paragraph shall meet the eligibility requirements of Section 7.02 and
the eligibility requirements of the related Other Pooling and Servicing
Agreement. Any appointment of a sub-servicer in accordance with this paragraph
shall be subject to the receipt of a Rating Agency confirmation with respect to
the Certificates and the Companion Loan Securities. In addition, if the Trustee
appoints a sub-servicer solely with respect to the related Serviced Whole Loan,
the Master Servicer shall not be liable for any losses incurred due to the
actions of such sub-servicer.
(d) Subject to the rights of the related Companion Holders pursuant
to the related Intercreditor Agreement, the Directing Certificateholder shall be
entitled to terminate the rights (subject to Section 3.11 and Section 6.03(d))
and obligations of the Special Servicer under this Agreement, with or without
cause, upon ten (10) Business Days' notice to the Special Servicer, the Master
Servicers and the Trustee; such termination to be effective upon the appointment
of a successor Special Servicer meeting the requirements of this Section
7.01(d). Upon a termination or resignation of such Special Servicer, the
Directing Certificateholder shall appoint a successor Special Servicer;
provided, however, that (i) such successor will meet the requirements set forth
in Section 7.02 and (ii) as evidenced in writing by each of the Rating Agencies,
the proposed successor of such Special Servicer will not, in and of itself,
result in a downgrading, withdrawal or qualification of the then-current ratings
provided by the Rating Agencies in respect to any Class of then outstanding
Certificates that is rated or, insofar as there is then outstanding any class of
Companion Loan Securities that is then rated by such Rating Agency, in a similar
event with respect to such class of Companion Loan Securities.
Notwithstanding the foregoing or any other provision of this
Agreement but without limitation of the rights of the Overland Park Trade Center
AB Companion Loan pursuant to the Overland Park Trade Center Intercreditor
Agreement, or waiver of the requirements contained therein relating thereto,
with respect to the Overland Park Trade Center Whole Loan, it is acknowledged
and agreed that the Overland Park Trade Center Controlling Holder shall have the
right to remove the Special Servicer for the Overland Park Trade Center Whole
Loan, so long as (i) such successor will meet the requirements set forth in
Section 7.02 and (ii) as evidenced in writing by each of the Rating Agencies,
the proposed successor of such Special Servicer will not, in and of itself,
result in a downgrading, withdrawal or qualification of the then-current ratings
provided by the Rating Agencies in respect to any Class of then outstanding
Certificates that is rated or, insofar as there is then outstanding any class of
Companion Loan Securities that is then rated by such Rating Agency, in a similar
event with respect to such class of Companion Loan Securities.
(e) No penalty or fee shall be payable to the terminated Special
Servicer with respect to any termination pursuant to this Section 7.01(e). All
costs and expenses of any such termination made without cause shall be paid by
the Holders of the Controlling Class.
Section 7.02 Co-Trustee or Trustee to Act; Appointment of Successor.
On and after the time a Master Servicer or the Special Servicer, as the case may
be, either resigns pursuant to Subsection (a) of the first sentence of Section
6.04 or receives a notice of termination for cause pursuant to Section 7.01(b),
and provided that no acceptable successor has been appointed within the time
period specified in Section 7.01(c), the Co-Trustee shall be the successor to
the applicable Master Servicer or the Trustee shall be the successor to the
Special Servicer, as the case may be, until such successor is appointed by the
Directing Certificateholder as provided in Section 7.01(d), as applicable, in
all respects in its capacity as a Master Servicer or Special Servicer under this
Agreement and the transactions set forth or provided for herein and shall be
subject to, and have the benefit of, all of the rights, (subject to Section 3.11
and Section 6.03) benefits, responsibilities, duties, liabilities and
limitations on liability relating thereto and that arise thereafter placed on or
for the benefit of a Master Servicer or Special Servicer by the terms and
provisions hereof; provided, however, that any failure to perform such duties or
responsibilities caused by the terminated party's failure under Section 7.01 to
provide information or moneys required hereunder shall not be considered a
default by such successor hereunder. The appointment of a successor Master
Servicer shall not affect any liability of the predecessor Master Servicer which
may have arisen prior to its termination as Master Servicer, and the appointment
of a successor Special Servicer shall not affect any liability of the
predecessor Special Servicer which may have arisen prior to its termination as
Special Servicer. The Co-Trustee, in its capacity as successor to a Master
Servicer or the Trustee, in its capacity as successor to the Special Servicer,
as the case may be, shall not be liable for any of the representations and
warranties of such Master Servicer or the Special Servicer, respectively, herein
or in any related document or agreement, for any acts or omissions of such
Master Servicer or Special Servicer or for any losses incurred by the such
Master Servicer pursuant to Section 3.06 hereunder, nor shall the Co-Trustee or
the Trustee be required to purchase any Mortgage Loan hereunder solely as a
result of its obligations as successor Master Servicer or Special Servicer, as
the case may be. Subject to Section 3.11, as compensation therefor, the
Co-Trustee as successor Master Servicer shall be entitled to the Servicing Fees
and all fees relating to the Mortgage Loans or Companion Loans (to the extent
permitted in the related Intercreditor Agreements) which such Master Servicer
would have been entitled to if such Master Servicer had continued to act
hereunder, including but not limited to any income or other benefit from any
Permitted Investment pursuant to Section 3.06, and subject to Section 3.11, the
Trustee as successor to the Special Servicer shall be entitled to the Special
Servicing Fees to which the Special Servicer would have been entitled if the
Special Servicer had continued to act hereunder. Should the Co-Trustee succeed
to the capacity of a Master Servicer or the Trustee succeed to the capacity of
the Special Servicer, as the case may be, the Trustee or the Co-Trustee shall be
afforded the same standard of care and liability as such Master Servicer or the
Special Servicer, as applicable, hereunder notwithstanding anything in Section
8.01 to the contrary, but only with respect to actions taken by it in its role
as successor Master Servicer or successor Special Servicer, as the case may be,
and not with respect to its role as Trustee or Co-Trustee hereunder.
Notwithstanding the above, the Trustee or the Co-Trustee, as applicable, may, if
it shall be unwilling to act as successor to the Master Servicer or the Special
Servicer, as applicable, or shall, if it is unable to so act, or if the Trustee
or Co-Trustee, as applicable, is not approved as a servicer by each Rating
Agency, or if the Directing Certificateholder or the Holders of Certificates
entitled to at least 51% of the Voting Rights so request in writing to the
Trustee and the Co-Trustee, promptly appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution
which meets the criteria set forth in Section 6.04 and otherwise herein, as the
successor to a Master Servicer or the Special Servicer, as applicable, hereunder
in the assumption of all or any part of the responsibilities, duties or
liabilities of such Master Servicer or Special Servicer hereunder. No
appointment of a successor to a Master Servicer or the Special Servicer
hereunder shall be effective until the assumption in writing by the successor to
the applicable Master Servicer or the Special Servicer of all its
responsibilities, duties and liabilities hereunder that arise thereafter and
upon Rating Agency confirmation with respect to the Certificates and the
Companion Loan Securities, and which appointment has been approved by the
Directing Certificateholder, such approval not to be unreasonably withheld.
Pending appointment of a successor to a Master Servicer or the Special Servicer
hereunder, unless the Trustee or the Co-Trustee, as applicable, shall be
prohibited by law from so acting, the Trustee or the Co-Trustee shall act in
such capacity as herein above provided. In connection with such appointment and
assumption of a successor to a Master Servicer or Special Servicer as described
herein, the Trustee or the Co-Trustee, as applicable, may make such arrangements
for the compensation of such successor out of payments on Mortgage Loans as it
and such successor shall agree; provided, however, that no such compensation
with respect to a successor Master Servicer or successor Special Servicer, as
the case may be, shall be in excess of that permitted the terminated Master
Servicer or Special Servicer, as the case may be, hereunder. The Trustee, the
Co-Trustee, each Master Servicer or the Special Servicer (whichever is not the
terminated party) and such successor shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession. Any
costs and expenses associated with the transfer of the servicing function (other
than with respect to a termination without cause) under this Agreement shall be
borne by the predecessor master servicer or special servicer, as applicable.
Section 7.03 Notification to Certificateholders. (a) Upon any
resignation of any Master Servicer or the Special Servicer pursuant to Section
6.04, any termination of any Master Servicer or the Special Servicer pursuant to
Section 7.01 or any appointment of a successor to any Master Servicer or the
Special Servicer pursuant to Section 7.02, the Trustee shall give prompt written
notice thereof to Certificateholders at their respective addresses appearing in
the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five (5) days after the Trustee would be
deemed to have notice of the occurrence of such an event in accordance with
Section 8.02(vii), the Trustee shall transmit by mail to the Depositor and all
Certificateholders (and, if a Serviced Whole Loan is affected, the related
Companion Holder) notice of such occurrence, unless such default shall have been
cured.
Section 7.04 Waiver of Events of Default. The Holders of
Certificates representing at least 66(2)/3% of the Voting Rights allocated to
each Class of Certificates affected by any Event of Default hereunder may waive
such Event of Default within 20 days of the receipt of notice from the Trustee
of the occurrence of such Event of Default; provided, however, that an Event of
Default under clause (i) of Section 7.01(a) may be waived only by all of the
Certificateholders of the affected Classes. Upon any such waiver of an Event of
Default, such Event of Default shall cease to exist and shall be deemed to have
been remedied for every purpose hereunder. Upon any such waiver of an Event of
Default by Certificateholders, the Trustee and the Co-Trustee shall be entitled
to recover all costs and expenses incurred by it in connection with enforcement
action taken with respect to such Event of Default prior to such waiver from the
Trust Fund. No such waiver shall extend to any subsequent or other Event of
Default or impair any right consequent thereon except to the extent expressly so
waived. Notwithstanding any other provisions of this Agreement, for purposes of
waiving any Event of Default pursuant to this Section 7.04, Certificates
registered in the name of the Depositor or any Affiliate of the Depositor shall
be entitled to the same Voting Rights with respect to the matters described
above as they would if any other Person held such Certificates.
Section 7.05 Co-Trustee as Maker of Advances. In the event that any
Master Servicer fails to fulfill its obligations hereunder to make any Advances
and such failure remains uncured, the Co-Trustee shall perform such obligations
(x) within the later of (i) five Business Days following such failure by such
Master Servicer with respect to Servicing Advances resulting in an Event of
Default under Section 7.01(a)(iii) hereof and (ii) the date necessary to avoid a
foreclosure of liens for delinquent real estate taxes, a lapse in insurance
coverage or a breach under any Ground Lease for the failure to pay any rents, in
each case to the extent a Responsible Officer of the Trustee or the Co-Trustee
has actual knowledge of such failure with respect to such Servicing Advances and
(y) by noon, New York City time, on the related Distribution Date with respect
to P&I Advances pursuant to the Co-Trustee's notice of failure pursuant to
Section 4.03(a) unless such failure has been cured. With respect to any such
Advance made by the Co-Trustee, the Co-Trustee shall succeed to all of the
applicable Master Servicer's rights with respect to Advances hereunder,
including, without limitation, such Master Servicer's rights of reimbursement
and interest on each Advance at the Reimbursement Rate, and rights to determine
that a proposed Advance is a Nonrecoverable P&I Advance or Servicing Advance, as
the case may be, (without regard to any impairment of any such rights of
reimbursement caused by such Master Servicer's default in its obligations
hereunder); provided, however, that if Advances made by the Co-Trustee and any
Master Servicer shall at any time be outstanding, or any interest on any Advance
shall be accrued and unpaid, all amounts available to repay such Advances and
the interest thereon hereunder shall be applied entirely to the Advances
outstanding to the Co-Trustee, until such Advances shall have been repaid in
full, together with all interest accrued thereon, prior to reimbursement of such
Master Servicer for such Advances. The Co-Trustee shall be entitled to
conclusively rely on any notice given with respect to a Nonrecoverable Advance
hereunder.
[End of Article VII]
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CO-TRUSTEE
Section 8.01 Duties of the Trustee and Co-Trustee. (a) The Trustee
(and the Co-Trustee), prior to the occurrence of an Event of Default and after
the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee (or the Co-Trustee, as applicable) shall exercise such of the rights and
powers vested in it by this Agreement, and use the same degree of care and skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs. Any permissive right of the
Trustee (or the Co-Trustee, as applicable) contained in this Agreement shall not
be construed as a duty.
(b) The Trustee (or the Co-Trustee, as applicable), upon receipt of
all resolutions, certificates, statements, opinions, reports, documents, orders
or other instruments furnished to the Trustee (or the Co-Trustee, as applicable)
which are specifically required to be furnished pursuant to any provision of
this Agreement (other than the Mortgage Files, the review of which is
specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee (or the Co-Trustee, as applicable) shall notify
the party providing such instrument and requesting the correction thereof. The
Trustee (or the Co-Trustee, as applicable) shall not be responsible for the
accuracy or content of any resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Depositor, any Master
Servicer or the Special Servicer or another Person, and accepted by the Trustee
(or the Co-Trustee, as applicable) in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee or the Co-Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct or bad faith; provided,
however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee (or the Co-Trustee, as applicable) shall be
determined solely by the express provisions of this Agreement, the Trustee
(or the Co-Trustee, as applicable) shall not be liable except for the
performance of such duties and obligations as are specifically set forth
in this Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee (or the Co-Trustee, as applicable) and,
in the absence of bad faith on the part of the Trustee (or the Co-Trustee,
as applicable), the Trustee (or the Co-Trustee, as applicable) may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee (or the Co-Trustee, as applicable) and conforming
to the requirements of this Agreement;
(ii) The Trustee (or the Co-Trustee, as applicable) shall not be
liable for an error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee (or the Co-Trustee, as
applicable) unless it shall be proved that the Trustee (or the Co-Trustee,
as applicable) was negligent in ascertaining the pertinent facts; and
(iii) The Trustee (or the Co-Trustee, as applicable) shall not be
liable with respect to any action taken, suffered or omitted to be taken
by it in good faith in accordance with the direction of Holders of
Certificates entitled to at least 25% of the Voting Rights relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee (or the Co-Trustee, as applicable), or exercising
any trust or power conferred upon the Trustee (or the Co-Trustee, as
applicable), under this Agreement (unless a higher percentage of Voting
Rights is required for such action).
(d) The Trustee shall promptly make available via its internet
website initially located at "xxx.xxxxxxx.xxx" to the Companion Holders all
reports that the Trustee has made available to Certificateholders under this
Agreement.
Section 8.02 Certain Matters Affecting the Trustee and the
Co-Trustee. Except as otherwise provided in Section 8.01:
(i) The Trustee (or the Co-Trustee, as applicable) may rely upon and
shall be protected in acting or refraining from acting upon any
resolution, Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, Appraisal, bond or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) The Trustee (or the Co-Trustee, as applicable) may consult with
counsel and the written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance therewith;
(iii) The Trustee (or the Co-Trustee, as applicable) shall not be
under any obligation to exercise any of the trusts or powers vested in it
by this Agreement or to make any investigation of matters arising
hereunder or to institute, conduct or defend any litigation hereunder or
in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee (or the
Co-Trustee, as applicable) reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or thereby;
the Trustee (or the Co-Trustee, as applicable) shall not be required to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it; nothing contained herein shall,
however, relieve the Trustee (or the Co-Trustee, as applicable) of the
obligation, upon the occurrence of an Event of Default which has not been
cured, to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their exercise
as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs;
(iv) Neither the Trustee nor the Co-Trustee shall be liable for any
action reasonably taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, the
Trustee (or the Co-Trustee, as applicable) shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates entitled to at
least 50% of the Voting Rights; provided, however, that if the payment
within a reasonable time to the Trustee (or the Co-Trustee, as applicable)
of the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee (or the
Co-Trustee, as applicable), not reasonably assured to the Trustee (or the
Co-Trustee, as applicable) by the security afforded to it by the terms of
this Agreement, the Trustee (or the Co-Trustee, as applicable) may require
reasonable indemnity from such requesting Holders against such expense or
liability as a condition to taking any such action. The reasonable expense
of every such reasonable examination shall be paid by the requesting
Holders;
(vi) The Trustee and the Co-Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys; provided, however, that the appointment of
such agents or attorneys shall not relieve the Trustee or the Co-Trustee
of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, the Trustee shall not
be deemed to have notice of any Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office, and such notice references the
Certificates or this Agreement; and
(viii) Neither the Trustee nor the Co-Trustee shall be responsible
for any act or omission of any Master Servicer or the Special Servicer
(unless the Co-Trustee is acting as a Master Servicer or the Trustee is
acting as a Special Servicer, as the case may be in which case the
Co-Trustee or the Trustee shall only be responsible for its own actions as
a Master Servicer or Special Servicer) or of the Depositor.
Section 8.03 Trustee and Co-Trustee Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans. The recitals contained herein and
in the Certificates, other than the acknowledgments of the Trustee in Sections
2.02 and 2.05 and the signature, if any, of the Certificate Registrar and
Authenticating Agent set forth on any outstanding Certificate, shall be taken as
the statements of the Depositor, each Master Servicer or the Special Servicer,
as the case may be, and the Trustee and the Co-Trustee assume no responsibility
for their correctness. Neither the Trustee or the Co-Trustee makes any
representations as to the validity or sufficiency of this Agreement or of any
Certificate (other than as to the signature, if any, of the Trustee set forth
thereon) or of any Mortgage Loan or related document. Neither the Trustee or the
Co-Trustee shall be accountable for the use or application by the Depositor of
any of the Certificates issued to it or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Depositor in respect of the
assignment of the Mortgage Loans to the Trust Fund, or any funds deposited in or
withdrawn from the applicable Certificate Account or any other account by or on
behalf of the Depositor, each Master Servicer, the Special Servicer. The Trustee
shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, any Master Servicer or the Special Servicer and
accepted by the Trustee, in good faith, pursuant to this Agreement.
Section 8.04 Trustee and Co-Trustee May Own Certificates. The
Trustee and the Co-Trustee, each in its individual capacity, not as Trustee or
Co-Trustee, may become the owner or pledgee of Certificates, and may deal with
the Depositor, each Master Servicer, the Special Servicer, the Initial
Purchasers and the Underwriters in banking transactions, with the same rights it
would have if it were not Trustee or Co-Trustee.
Section 8.05 Fees and Expenses of Trustee and Co-Trustee;
Indemnification of Trustee and Co-Trustee. (a) As compensation for the
performance of their respective duties hereunder, the Trustee will be paid the
Trustee Fee and the Co-Trustee will be paid the Co-Trustee Fee, in each case,
equal to the Trustee's and the Co-Trustee's respective portion of one month's
interest at the Trustee Fee Rate, which shall cover recurring and otherwise
reasonably anticipated expenses of the Trustee and the Co-Trustee, respectively.
The Trustee Fee shall be paid monthly on a Mortgage Loan-by-Mortgage Loan basis.
As to each Mortgage Loan and REO Loan, the Trustee Fee shall accrue from time to
time at the Trustee Fee Rate and shall be computed on the basis of the Stated
Principal Balance of such Mortgage Loan and a 360-day year consisting of twelve
30-day months. The Trustee Fee and the Co-Trustee Fee (which shall not be
limited to any provision of law in regard to the compensation of a trustee of an
express trust) shall constitute the Trustee's and the Co-Trustee's,
respectively, sole form of compensation for all services rendered by it in the
execution of the trusts hereby created and in the exercise and performance of
any of the powers and duties of the Trustee and the Co-Trustee hereunder. No
Trustee Fee shall be payable with respect to the Companion Loans.
(b) The Trustee, the Co-Trustee and any director, officer, employee
or agent of the Trustee or the Co-Trustee shall be entitled to be indemnified
and held harmless by the Trust Fund (to the extent of amounts on deposit in the
Certificate Accounts or Lower-Tier Distribution Account from time to time)
against any loss, liability or expense (including, without limitation, costs and
expenses of litigation, and of investigation, counsel fees, damages, judgments
and amounts paid in settlement, and expenses incurred in becoming successor
master servicer or successor special servicer, to the extent not otherwise paid
hereunder) arising out of, or incurred in connection with, any act or omission
of the Trustee or the Co-Trustee, respectively, relating to the exercise and
performance of any of the powers and duties of the Trustee or the Co-Trustee,
respectively, hereunder; provided, however, that none of the Trustee, the
Co-Trustee nor any of the other above specified Persons shall be entitled to
indemnification pursuant to this Section 8.05(b) for (i) allocable overhead,
(ii) expenses or disbursements incurred or made by or on behalf of the Trustee
or the Co-Trustee in the normal course of the Trustee or the Co-Trustee
performing its duties in accordance with any of the provisions hereof, which are
not "unanticipated expenses of the REMIC" within the meaning of Treasury
Regulations Section 1.860G-1(b)(3)(ii), (iii) any expense or liability
specifically required to be borne thereby pursuant to the terms hereof or (iv)
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence in the performance of the Trustee's or Co-Trustee's,
respectively, obligations and duties hereunder, or by reason of negligent
disregard of such obligations or duties, or as may arise from a breach of any
representation, warranty or covenant of the Trustee or the Co-Trustee,
respectively, made herein. The provisions of this Section 8.05(b) shall survive
the termination of this Agreement and any resignation or removal of the Trustee
or the Co-Trustee, respectively, and appointment of a successor thereto. The
foregoing indemnity shall also apply to the Trustee in its capacities of
Certificate Registrar and Authenticating Agent.
Section 8.06 Eligibility Requirements for Trustee and Co-Trustee.
The Trustee and the Co-Trustee hereunder shall at all times be, and will be
required to resign if it fails to be, (i) a corporation, national bank, national
banking association or a trust company, organized and doing business under the
laws of any state or the United States of America, authorized under such laws to
exercise corporate trust powers and to accept the trust conferred under this
Agreement, having a combined capital and surplus of at least $100,000,000 and
subject to supervision or examination by federal or state authority and shall
not be an Affiliate of any Master Servicer or the Special Servicer (except
during any period when the Trustee (or the Co-Trustee, as applicable) is acting
as, or has become successor to, any Master Servicer or the Special Servicer, as
the case may be, pursuant to Section 7.02), (ii) an institution insured by the
Federal Deposit Insurance Corporation and (iii) an institution whose long-term
senior unsecured debt is rated "AA-" by S&P and Fitch and "Aa3" by Xxxxx'x, (or
such other rating as would not, as evidenced in writing by such Rating Agency,
result in the qualification, downgrading or withdrawal of any of the ratings
then assigned thereby to the Certificates or any class of Companion Loan
Securities); provided that the Trustee (or the Co-Trustee, as applicable) shall
not cease to be eligible to serve as such based on a failure to satisfy such
rating requirements so long as the Trustee (or the Co-Trustee (or its parent
company), as applicable) maintains a long-term unsecured debt rating of no less
than "A+" from each of S&P and Fitch and "Baa2" from Xxxxx'x and a short-term
unsecured debt rating of at least "A-1" by S&P (or such rating as would not, as
evidenced in writing by such Rating Agency, result in a qualification,
downgrading or withdrawal of any of the ratings assigned to the Certificates or
any class of Companion Loan Securities).
If such corporation, national bank or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation,
national bank or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In the event the place of business from which the Trustee administers
the Upper-Tier REMIC, the Middle-Tier REMIC and the Lower-Tier REMIC or in which
the Trustee's office is located is in a state or local jurisdiction that imposes
a tax on the Trust Fund on the net income of a REMIC (other than a tax
corresponding to a tax imposed under the REMIC Provisions), the Trustee shall
elect either to (i) resign immediately in the manner and with the effect
specified in Section 8.07, (ii) pay such tax at no expense to the Trust or (iii)
administer the Upper-Tier REMIC, the Middle-Tier REMIC and the Lower-Tier REMIC
from a state and local jurisdiction that does not impose such a tax.
Section 8.07 Resignation and Removal of the Trustee or Co-Trustee.
(a) The Trustee (or the Co-Trustee, as applicable) may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Depositor, each Master Servicer, the Special Servicer, the Swap
Counterparty, the Co-Trustee (or the Trustee, as applicable) and to all
Certificateholders. Upon receiving such notice of resignation, the Depositor
shall promptly appoint a successor trustee (or co-trustee, as applicable)
acceptable to each Master Servicer and the Directing Certificateholder by
written instrument, in duplicate, which instrument shall be delivered to the
resigning Trustee (or Co-Trustee, as applicable) and to the successor trustee
(or co-trustee, as applicable). A copy of such instrument shall be delivered to
each Master Servicer, the Special Servicer, the Co-Trustee (or the Trustee, as
applicable), the Certificateholders and the Swap Counterparty by the Depositor.
If no successor trustee (or co-trustee, as applicable) shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee (or Co-Trustee, as applicable) may
petition any court of competent jurisdiction for the appointment of a successor
trustee (or co-trustee, as applicable).
(b) If at any time the Trustee (or the Co-Trustee, as applicable)
shall cease to be eligible in accordance with the provisions of Section 8.06 and
shall fail to resign after written request therefor by the Depositor or any
Master Servicer, or if at any time the Trustee (or the Co-Trustee, as
applicable) shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee (or the Co-Trustee, as applicable) or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee (or the Co-Trustee, as applicable) or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or if
the Trustee shall fail (other than by reason of the failure of either the
applicable Master Servicer or the Special Servicer to timely perform its
obligations hereunder or as a result of other circumstances beyond the Trustee's
reasonable control), to timely publish any report to be delivered, published or
otherwise made available by the Trustee pursuant to Section 4.02 and such
failure shall continue unremedied for a period of five days, or if the Trustee
fails to make distributions required pursuant to Sections 3.05(c), 4.01 or 9.01,
then the Depositor may remove the Trustee (or the Co-Trustee, as applicable) and
appoint a successor trustee (or co-trustee, as applicable) acceptable to each
Master Servicer by written instrument, in duplicate, which instrument shall be
delivered to the Trustee (or the Co-Trustee, as applicable) so removed and to
the successor trustee (or co-trustee, as applicable). A copy of such instrument
shall be delivered to each Master Servicer, the Special Servicer, the Co-Trustee
(or the Trustee, as applicable) and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee (or the Co-Trustee, as
applicable) and appoint a successor trustee (or co-trustee, as applicable) by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to each Master Servicer, one complete set to the Trustee (or
the Co-Trustee, as applicable) so removed and one complete set to the successor
so appointed. A copy of such instrument shall be delivered to the Depositor, the
Special Servicer, the Co-Trustee (or the Trustee, as applicable) and the
remaining Certificateholders by each Master Servicer.
(d) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor Trustee as
provided in Section 8.08.
Upon any succession of the Trustee (or the Co-Trustee, as
applicable) under this Agreement, the predecessor Trustee (or the Co-Trustee, as
applicable) shall be entitled to the payment of accrued and unpaid compensation
and reimbursement as provided for under this Agreement for services rendered and
expenses incurred (including without limitation, unreimbursed Advances). No
Trustee (or Co-Trustee, as applicable) shall be personally liable for any action
or omission of any successor Trustee (or Co-Trustee, as applicable).
Section 8.08 Successor Trustee and Co-Trustee. (a) Any successor
Trustee (or Co-Trustee, as applicable) appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, each Master Servicer,
the Special Servicer and to its predecessor Trustee (or Co-Trustee, as
applicable) an instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the predecessor Trustee (or Co-Trustee, as
applicable) shall become effective and such successor Trustee (or Co-Trustee, as
applicable) without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as Trustee (or
Co-Trustee, as applicable) herein. The predecessor Trustee (or Co-Trustee, as
applicable) shall deliver to the successor trustee (or co-trustee, as
applicable) all Mortgage Files and related documents and statements held by it
hereunder (other than any Mortgage Files at the time held on its behalf by a
Custodian, which Custodian, at Custodian's option shall become the agent of the
successor Trustee), and the Depositor, each Master Servicer, the Special
Servicer and the predecessor Trustee (or Co-Trustee, as applicable) shall
execute and deliver such instruments and do such other things as may reasonably
be required to more fully and certainly vest and confirm in the successor
Trustee (or Co-Trustee, as applicable) all such rights, powers, duties and
obligations, and to enable the successor Trustee (or Co-Trustee, as applicable)
to perform its obligations hereunder.
(b) No successor trustee (or co-trustee, as applicable) shall accept
appointment as provided in this Section 8.08 unless at the time of such
acceptance such successor trustee (or co-trustee, as applicable) shall be
eligible under the provisions of Section 8.06 and the appointment of such
successor trustee (or co-trustee, as applicable) would not, as evidenced in
writing by Fitch, result in a qualification, downgrading or withdrawal of any of
the ratings assigned to the Certificates.
(c) Upon acceptance of appointment by a successor trustee (or
co-trustee, as applicable) as provided in this Section 8.08, Master Servicer No.
1 shall mail notice of the succession of such trustee (or co-trustee, as
applicable) to the Depositor and the Certificateholders. If Master Servicer No.
1 fails to mail such notice within 10 days after receipt of notice of the
acceptance of appointment by the successor trustee (or co-trustee, as
applicable), such successor trustee or successor co-trustee shall cause such
notice to be mailed at the expense of Master Servicer No. 1.
Section 8.09 Merger or Consolidation of Trustee or Co-Trustee. Any
Person into which the Trustee (or the Co-Trustee, as applicable) may be merged
or converted or with which it may be consolidated or any Person resulting from
any merger, conversion or consolidation to which the Trustee (or the Co-Trustee,
as applicable) shall be a party, or any Person succeeding to all or
substantially all of the corporate trust business of the Trustee (or the
Co-Trustee, as applicable) shall be the successor of the Trustee (or the
Co-Trustee, as applicable) hereunder; provided, that such successor Person shall
be eligible under the provisions of Section 8.06, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. The Trustee (or the Co-Trustee,
as applicable) will provide notice of such event to the Master Servicer, the
Special Servicer, the Depositor and the Rating Agencies.
Section 8.10 Appointment of Additional Co-Trustee or Separate
Trustee. (a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing Group A Mortgage Loans or Group B
Mortgage Loans may at the time be located, the applicable Master Servicer and
the Trustee (or the Co-Trustee, as applicable) acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Co-Trustee to act as additional co-trustee or
co-trustees, jointly with the Co-Trustee, or approved by the Trustee to act as
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the applicable
Master Servicer and the Trustee (or the Co-Trustee, as applicable) may consider
necessary or desirable. If the applicable Master Servicer shall not have joined
in such appointment within 15 days after the receipt by it of a request to do
so, or in case an Event of Default shall have occurred and be continuing, the
Trustee (or the Co-Trustee, as applicable) alone shall have the power to make
such appointment. No additional co-trustee or separate trustee hereunder shall
be required to meet the terms of eligibility as a successor trustee under
Section 8.06 hereunder and no notice to Holders of Certificates of the
appointment of additional co-trustee(s) or separate trustee(s) shall be required
under Section 8.08 hereof. All co-trustee fees shall be payable out of the Trust
Fund.
(b) In the case of any appointment of an additional co-trustee or
separate trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee (or the Co-Trustee, as
applicable) shall be conferred or imposed upon and exercised or performed by the
Trustee (or the Co-Trustee, as applicable) and such separate trustee or
additional co-trustee jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether as
Trustee (or the Co-Trustee, as applicable) hereunder or as successor to any
Master Servicer or the Special Servicer hereunder), the Trustee (or the
Co-Trustee, as applicable) shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust Fund or any portion thereof in any
such jurisdiction) shall be exercised and performed by such separate trustee or
additional co-trustee at the direction of the Trustee (or the Co-Trustee, as
applicable).
(c) Any notice, request or other writing given to the Trustee or the
Co-Trustee, respectively, shall be deemed to have been given to each of the
then-separate trustees and additional co-trustees, respectively, as effectively
as if given to each of them. Every instrument appointing any separate trustee or
additional co-trustee shall refer to this Agreement and the conditions of this
Article VIII. Each separate trustee and additional 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
the Co-Trustee, as applicable) 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 (or the Co-Trustee, as applicable).
Every such instrument shall be filed with the Trustee (or the Co-Trustee, as
applicable).
(d) Any separate trustee or additional co-trustee may, at any time,
constitute the Trustee (or the Co-Trustee, as applicable), its agent or
attorney-in-fact, with full power and authority, to the extent not prohibited by
law, to do any lawful act under or in respect of this Agreement on its behalf
and in its name. If any separate trustee or additional co-trustee shall cease to
exist, 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 (or the Co-Trustee, as applicable), to the extent permitted by law,
without the appointment of a new or successor Trustee (or the Co-Trustee, as
applicable).
(e) The appointment of an additional co-trustee or separate trustee
under this Section 8.10 shall not relieve the Trustee or the Co-Trustee of its
duties and responsibilities hereunder.
Section 8.11 Appointment of Custodians. The Trustee may appoint one
or more Custodians to hold all or a portion of the Mortgage Files as agent for
the Trustee. Each Custodian shall be a depository institution subject to
supervision by federal or state authority, shall have combined capital and
surplus of at least $15,000,000 and shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor
or any Affiliate of the Depositor. Each Custodian shall be subject to the same
obligations and standard of care as would be imposed on the Trustee hereunder in
connection with the retention of Mortgage Files directly by the Trustee. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible for all acts
and omissions of any Custodian. Any Custodian appointed hereunder must maintain
a fidelity bond and errors and omissions policy in an amount customary for
Custodians which serve in such capacity in commercial mortgage loan
securitization transactions.
Section 8.12 Access to Certain Information. (a) On or prior to the
date of the first sale of any Non-Registered Certificate to an Independent third
party, the Depositor shall provide to the Trustee three copies of any private
placement memorandum or other disclosure document used by the Depositor or its
Affiliate in connection with the offer and sale of the Class of Certificates to
which such Non-Registered Certificate relates. In addition, if any such private
placement memorandum or disclosure document is revised, amended or supplemented
at any time following the delivery thereof to the Trustee, the Depositor
promptly shall inform the Trustee of such event and shall deliver to the Trustee
a copy of the private placement memorandum or disclosure document, as revised,
amended or supplemented. The Trustee shall maintain at its offices primarily
responsible for administering the Trust Fund and shall, upon reasonable advance
notice, make available during normal business hours for review by any Holder of
a Certificate, the Depositor, each Master Servicer, the Special Servicer, any
Rating Agency or any other Person to whom the Trustee believes such disclosure
is appropriate, originals or copies of the following items: (i) in the case of a
Holder or prospective transferee of a Non-Registered Certificate, any private
placement memorandum or other disclosure document relating to the Class of
Certificates to which such Non-Registered Certificate belongs, in the form most
recently provided to the Trustee and (ii) in all cases, including the related
Companion Holder with respect to any Serviced Whole Loan (a) this Agreement and
any amendments hereto entered into pursuant to Section 12.01, (b) all statements
required to be delivered to Certificateholders of the relevant Class pursuant to
Section 4.02 since the Closing Date, (c) all Officer's Certificates delivered to
the Trustee since the Closing Date pursuant to Section 11.09, (d) all
accountants' reports delivered to the Trustee since the Closing Date pursuant to
Section 11.11, (e) any inspection report prepared by any Master Servicer,
Sub-Servicer or Special Servicer, as applicable, and delivered to the Trustee
and the applicable Master Servicer in respect of each Mortgaged Property
pursuant to Section 3.12(a), (f) as to each Mortgage Loan and Companion Loan
pursuant to which the related Mortgagor is required to deliver such items or the
Special Servicer has otherwise acquired such items, the most recent annual
operating statement and rent roll of the related Mortgaged Property and
financial statements of the related Mortgagor and any other reports of the
Mortgagor collected by the applicable Master Servicer, Sub-Servicer or Special
Servicer, as applicable, and delivered to the Trustee pursuant to Section
3.12(c), together with the accompanying written reports to be prepared by the
Special Servicer and delivered to the Trustee pursuant to Section 3.12(b), (g)
any and all notices, reports and Environmental Assessments delivered to the
Trustee with respect to any Mortgaged Property securing a Defaulted Mortgage
Loan and Companion Loan as to which the environmental testing contemplated by
Section 3.09(c) revealed that either of the conditions set forth in clauses (i)
and (ii) of the first sentence thereof was not satisfied (but only for so long
as such Mortgaged Property or the related Mortgage Loan are part of the Trust
Fund), (h) any and all modifications, waivers and amendments of the terms of a
Mortgage Loan and Companion Loan entered into by the applicable Master Servicer
or the Special Servicer and delivered to the Trustee pursuant to Section 3.20
(but only for so long as the affected Mortgage Loan and Companion Loan is part
of the Trust Fund), (i) any and all Officer's Certificates delivered to the
Trustee to support the applicable Master Servicer's determination that any P&I
Advance or Servicing Advance was or, if made, would be a Nonrecoverable P&I
Advance or Nonrecoverable Servicing Advance, as the case may be, (j) any and all
of the Mortgage Loan and Companion Loan documents contained in the Mortgage
File, (k) any and all Appraisals obtained pursuant to the definition of
"Appraisal Reduction" herein, (l) information regarding the occurrence of
Servicing Transfer Events as to the Mortgage Loans and (m) any and all
Sub-Servicing Agreements and any amendments thereto and modifications thereof.
Copies of any and all of the foregoing items will be available from the Trustee
upon request; provided, however, that the Trustee shall be permitted to require
payment of a sum sufficient to cover the reasonable costs and expenses of
providing such copies, except in the case of copies provided to the Directing
Certificateholder or the Rating Agencies, which shall be free of charge (except
for extraordinary or duplicate requests). In addition, without limiting the
generality of the foregoing, any holder of a Nonregistered Certificate may upon
request from the Trustee obtain a copy of any factual report (other than the
Asset Status Report) delivered to the Rating Agencies under this Agreement.
(b) The Trustee shall make available to certain financial market
publishers, which initially shall be Bloomberg, L.P., Xxxxx, LLC and Intex
Solutions LLC on a monthly basis, all CMSA reports and any other reports
required to be delivered by the Trustee pursuant to Article IV hereof. If any
such information is provided on or before June 25, 2007, the Trustee shall make
the Prospectus available to Bloomberg, L.P., Xxxxx, LLC and Intex Solutions,
Inc.
(c) Notwithstanding anything to the contrary herein, in addition to
the reports and information made available and distributed pursuant to the terms
of this Agreement (including the information set forth in Section 8.12(a)), the
Trustee shall, in accordance with such reasonable rules and procedures as each
may adopt (which may include the requirement that an agreement that provides
that such information shall be used solely for purposes of evaluating the
investment characteristics of the Certificates be executed), also provide the
reports available to Certificateholders pursuant to Section 4.02, as well as
certain additional information received by the Trustee, to any
Certificateholder, the Underwriters, the Placement Agents, any Certificate Owner
or any prospective investor identified as such by a Certificate Owner or
Underwriter, that requests such reports or information; provided that the
Trustee, as the case may be, shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing copies of
such reports or information.
(d) With respect to any information furnished by the Trustee
pursuant to this Section 8.12, the Trustee shall be entitled to indicate the
source of such information and the Trustee may affix thereto any disclaimer it
deems appropriate in its discretion. The Trustee shall notify Certificateholders
of the availability of any such information in any manner as it, in its sole
discretion, may determine. In connection with providing access to or copies of
the items described in the preceding paragraph, the Trustee may require (a) in
the case of Certificate Owners, a confirmation executed by the requesting Person
substantially in form and substance reasonably acceptable to the Trustee, as
applicable, generally to the effect that such Person is a beneficial holder of
Certificates, is requesting the information solely for use in evaluating such
Person's investment in the Certificates and will otherwise keep such information
confidential and (b) in the case of a prospective purchaser, confirmation
executed by the requesting Person in form and substance reasonably acceptable to
the Trustee, generally to the effect that such Person is a prospective purchaser
of a Certificate or an interest therein, is requesting the information solely
for use in evaluating a possible investment in Certificates and will otherwise
keep such information confidential. The Trustee shall not be liable for the
dissemination of information in accordance with this Agreement.
Section 8.13 Representations and Warranties of the Trustee. (a) The
Trustee hereby represents and warrants to the Depositor, the Co-Trustee, the
Master Servicers and the Special Servicer and for the benefit of the
Certificateholders and the related Companion Holders, as of the Closing Date,
that:
(i) The Trustee is a national banking association duly organized
under the laws of the United States, duly organized, validly existing and
in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's charter and by-laws or constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(iii) The Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (a) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
national banking associations specifically and (b) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee;
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the Trustee
from entering into this Agreement or, in the Trustee's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which
has not been obtained or cannot be obtained prior to the actual
performance by the Trustee of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of the Trustee to perform its obligations hereunder.
Section 8.14 Representations and Warranties of the Co-Trustee. (a)
The Co-Trustee hereby represents and warrants to the Depositor, the Trustee, the
Master Servicers and the Special Servicer and for the benefit of the
Certificateholders and the related Companion Holders, as of the Closing Date,
that:
(i) The Co-Trustee is a national banking association duly organized
under the laws of the United States, duly organized, validly existing and
in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Co-Trustee,
and the performance and compliance with the terms of this Agreement by the
Co-Trustee, will not violate the Co-Trustee's charter and by laws or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(iii) The Co-Trustee has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Co-Trustee, enforceable against the
Co-Trustee in accordance with the terms hereof, subject to (a) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally and the rights of
creditors of national banking associations specifically and (b) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law;
(v) The Co-Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Co-Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Co-Trustee to perform its obligations under this Agreement or the
financial condition of the Co-Trustee;
(vi) No litigation is pending or, to the best of the Co-Trustee's
knowledge, threatened against the Co-Trustee which would prohibit the
Co-Trustee from entering into this Agreement or, in the Co-Trustee's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Co-Trustee to perform its obligations
under this Agreement or the financial condition of the Co-Trustee; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Co-Trustee, or compliance by the Co-Trustee with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which
has not been obtained or cannot be obtained prior to the actual
performance by the Co-Trustee of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of the Co-Trustee to perform its obligations hereunder.
[End of Article VIII]
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans. Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicers, the Special Servicer, the Co-Trustee and the Trustee shall
terminate upon payment (or provision for payment) to the Certificateholders of
all amounts held by the Trustee and required hereunder to be so paid on the
Distribution Date following the earlier to occur of (i) the final payment (or
related Advance) or other liquidation of the last Mortgage Loan or REO Property
subject thereto or (ii) the purchase or other liquidation by the Holders of the
majority of the Controlling Class, the Special Servicer, any Master Servicer or
the Holders of the Class LR Certificates, in that order of priority, of all the
Mortgage Loans and the Trust Fund's portion of each REO Property remaining in
the Trust Fund at a price equal to (a) the sum of (1) the aggregate Purchase
Price of all the Mortgage Loans (exclusive of REO Loans) included in the Trust
Fund, (2) the Appraised Value of the Trust Fund's portion of each REO Property,
if any, included in the Trust Fund (such Appraisals in clause (a)(2) to be
conducted by an Independent MAI-designated appraiser selected and mutually
agreed upon by the applicable Master Servicer and the Trustee, and approved by
more than 50% of the Voting Rights of the Classes of Certificates then
outstanding (other than the Controlling Class unless the Controlling Class is
the only Class of Certificates then outstanding)) (which approval shall be
deemed given unless more than 50% of such Certificateholders object within 20
days of receipt of notice thereof) and (3) the reasonable out-of-pocket expenses
of each Master Servicer with respect to such termination, unless a Master
Servicer is the purchaser of such Mortgage Loans, minus (b) solely in the case
where a Master Servicer is effecting such purchase, the aggregate amount of
unreimbursed Advances, together with any interest accrued and payable to such
Master Servicer in respect of such Advances in accordance with Sections 3.03(d)
and 4.03(d) and any unpaid Servicing Fees, remaining outstanding (which items
shall be deemed to have been paid or reimbursed to such Master Servicer in
connection with such purchase) and (iii) exchange by the Sole Certificateholder
pursuant to the terms of the immediately succeeding paragraph, the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund; provided, however, that in no
event shall the trust created hereby continue beyond the expiration of 21 years
from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late ambassador of the United States to the Court of St. James's, living on the
date hereof.
Following the date on which the Offered Certificates (other than the
Class X Certificates) and the Class B, Class B-S, Class C, Class C-S, Class D,
Class D-S, Class E, Class E-S, Class F, Class F-S, Class G, Class G-S, Class H
and Class H-S Certificates retire, the Sole Certificateholder shall have the
right to exchange all of its Certificates (other than the Class S and the
Residual Certificates) for all of the Mortgage Loans and the Trust Fund's
portion of each REO Property remaining in the Trust Fund as contemplated by
clause (iii) of the first paragraph of this Section 9.01 by giving written
notice to all the parties hereto no later than 60 days prior to the anticipated
date of exchange. In the event that the Sole Certificateholder elects to
exchange all of its Certificates (other than the Class S and the Residual
Certificates) for all of the Mortgage Loans and the Trust Fund's portion of each
REO Property remaining in the Trust in accordance with the preceding sentence,
such Sole Certificateholder, not later than the Distribution Date on which the
final distribution on the Certificates is to occur, shall deposit in the
Certificate Accounts an amount in immediately available funds equal to all
amounts due and owing to the Depositor, the Master Servicers, the Special
Servicer, the Trustee and the Co-Trustee hereunder through the date of the
liquidation of the Trust Fund that may be withdrawn from the Certificate
Account, or an escrow account acceptable to the respective parties hereto,
pursuant to Section 3.05(a) or that may be withdrawn from the Distribution
Account pursuant to Section 3.05(a), but only to the extent that such amounts
are not already on deposit in the Certificate Account. In addition, each Master
Servicer shall transfer all amounts required to be transferred to the Lower-Tier
Distribution Account on the P&I Advance Date related to such Distribution Date
in which the final distribution on the Certificates is to occur from the
Certificate Account pursuant to the first paragraph of Section 3.04(b)
(provided, however, that if the Serviced Whole Loan is secured by REO Property,
the Trust Fund's portion of the REO Property which is being purchased pursuant
to the foregoing, the portion of the above-described purchase price allocable to
such Trust Fund's portion of REO Property shall initially be deposited into the
related REO Account). Upon confirmation that such final deposits have been made
and following the surrender of all its Certificates (other than the Class S and
the Residual Certificates) on the final Distribution Date, the Trustee shall,
upon receipt of a Request for Release from each Master Servicer, release or
cause to be released to the Sole Certificateholder or any designee thereof, the
Mortgage Files for the remaining Mortgage Loans and shall execute all
assignments, endorsements and other instruments furnished to it by the Sole
Certificateholder as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties remaining in the Trust Fund, and the Trust Fund shall
be liquidated in accordance with Section 9.02. Such transfers shall be subject
to any rights of any Sub-Servicers to service or perform select servicing
functions with respect to the Mortgage Loans. Solely for federal income tax
purposes, the Sole Certificateholder shall be deemed to have purchased the
assets of the Lower-Tier REMIC for an amount equal to the remaining Certificate
Balance of its Certificates (other than the Class S, Class X and the Residual
Certificates), plus accrued, unpaid interest with respect thereto, and the
Trustee shall credit such amounts against amounts distributable in respect of
such Certificates and Related Uncertificated Lower-Tier Interests.
The obligations and responsibilities under this Agreement of the
Depositor, the Master Servicers, the Special Servicer, the Trustee, the
Co-Trustee and the applicable Companion Paying Agent shall terminate with
respect to any Companion Loan to the extent (i) its related Serviced Whole Loan
has been paid in full or is no longer part of the Trust Fund and (ii) no amounts
payable by the related Companion Holder to or for the benefit of the Trust or
any party hereto in accordance with the related Intercreditor Agreement remain
due and owing.
The Holders of the majority of the Controlling Class, the Special
Servicer, each Master Servicer or the Holders of the Class LR Certificates, in
that order of priority, may, at their option, elect to purchase all of the
Mortgage Loans (and all property acquired through exercise of remedies in
respect of any Mortgage Loan) and the Trust Fund's portion of each REO Property
remaining in the Trust Fund as contemplated by clause (i) of the preceding
paragraph by giving written notice to the Trustee and the other parties hereto
no later than 60 days prior to the anticipated date of purchase; provided,
however, that each Master Servicer, the Special Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates may so elect to
purchase all of the Mortgage Loans and the Trust Fund's portion of each REO
Property remaining in the Trust Fund only on or after the first Distribution
Date on which the aggregate Stated Principal Balances of the Mortgage Loans and
the Trust Fund's portion of any REO Loans remaining in the Trust Fund is less
than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage Loans
set forth in the Preliminary Statement. In the event that any Master Servicer,
the Special Servicer, the Holders of the Controlling Class or the Holders of the
Class LR Certificates purchases all of the Mortgage Loans and the Trust Fund's
portion of each REO Property remaining in the Trust Fund in accordance with the
preceding sentence, such Master Servicer, the Special Servicer, the Holders of
the Controlling Class or the Holders of the Class LR Certificates, as
applicable, shall deposit in the Lower-Tier Distribution Account not later than
the P&I Advance Date relating to the Distribution Date on which the final
distribution on the Certificates is to occur, an amount in immediately available
funds equal to the above-described purchase price (exclusive of any portion
thereof payable to any Person other than the Certificateholders pursuant to
Section 3.05(a), which portion shall be deposited in the Certificate Account).
In addition, the applicable Master Servicer shall transfer to the Lower-Tier
Distribution Account all amounts required to be transferred thereto on such P&I
Advance Date from the Certificate Account pursuant to the first paragraph of
Section 3.04(b), together with any other amounts on deposit in the Certificate
Account that would otherwise be held for future distribution and, without
duplication, pay to the Swap Counterparty any Class A-2SFL Net Swap Payment and
Class A-JFL Net Swap Payment as required by Section 3.31(c). Upon confirmation
that such final deposits and payments have been made, the Trustee shall release
or cause to be released to the applicable Master Servicer, the Special Servicer,
the Holders of the Controlling Class or the Holders of the Class LR
Certificates, as applicable, the Mortgage Files for the remaining Mortgage Loans
and shall execute all assignments, endorsements and other instruments furnished
to it by such Master Servicer, the Special Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates, as applicable, as
shall be necessary to effectuate transfer of the Mortgage Loans and REO
Properties remaining in the Trust Fund.
For purposes of this Section 9.01, the Holders of the majority of
the Controlling Class shall have the first option to terminate the Trust Fund,
then the Special Servicer, then each Master Servicer, and then the Holders of
the Class LR Certificates. For purposes of this Section 9.01, the Directing
Certificateholder, with the consent of the Holders of the Controlling Class,
shall act on behalf of the Holders of the Controlling Class in purchasing the
assets of the Trust Fund and terminating the Trust.
Notice of any termination pursuant to this Section 9.01 shall be
given promptly by the Trustee by letter to the Certificateholders, the Swap
Counterparty and each Rating Agency and the related Companion Holder with
respect to a Serviced Whole Loan and, if not previously notified pursuant to
this Section 9.01, to the other parties hereto mailed (a) in the event such
notice is given in connection with the purchase of all of the Mortgage Loans and
each REO Property remaining in the Trust Fund, not earlier than the 15th day and
not later than the 25th day of the month next preceding the month of the final
distribution on the Certificates, or (b) otherwise during the month of such
final distribution on or before the P&I Advance Determination Date in such
month, in each case specifying (i) the Distribution Date upon which the Trust
Fund will terminate and final payment of the Certificates will be made, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Certificates at the offices of the
Certificate Registrar or such other location therein designated.
After transferring the Lower-Tier Regular Distribution Amount and
the amount of any Yield Maintenance Charges distributable pursuant to Section
4.01(d)(iii) to the Middle Tier-Distribution Account and after transferring the
Middle-Tier Regular Distribution Amount and the amount of any Yield Maintenance
Charges distributable pursuant to Section 4.01(d)(iii) to the Upper-Tier
Distribution Account (and with respect to any amounts payable to the Class
A-2SFL Regular Interest and the Class A-JFL Regular Interest, from the
Upper-Tier Distribution Account to the Floating Rate Account), in each case
pursuant to Section 3.04(b), and upon presentation and surrender of the
Certificates by the Certificateholders on the final Distribution Date, the
Trustee shall distribute to each Certificateholder so presenting and
surrendering its Certificates such Certificateholder's Percentage Interest of
that portion of the amounts then on deposit in the Upper-Tier Distribution
Account (or, in the case of the Class A-2SFL Certificates and the Class A-JFL
Certificates, amounts then on deposit in the related Floating Rate Account after
payment of any Class A-2SFL Net Swap Payment and Class A-JFL Net Swap Payment to
the Swap Counterparty, as specified in Section 4.01(k)) that are allocable to
payments on the Class of Certificates so presented and surrendered and to the
Holders of the Class S Certificates any amounts remaining on deposit in the
Excess Interest Distribution Account. Amounts transferred from the Lower-Tier
Distribution Account to the Middle-Tier Distribution Account and from the
Middle-Tier Distribution Account to the Upper-Tier Distribution Account as of
the final Distribution Date (exclusive of any portion of such amounts payable or
reimbursable to any Person pursuant to clause (ii) of Section 3.05(e)) shall be
allocated for these purposes, in the amounts and in accordance with the priority
set forth in Sections 4.01(b), 4.01(d) and 4.01(e) and shall be distributed in
termination and liquidation of the Uncertificated Lower-Tier Interests and
Uncertificated Middle-Tier Interests and the Class LR and Class MR Certificates
in accordance with Sections 4.01(b), 4.01(d) and 4.01(e). Any funds not
distributed on such Distribution Date shall be set aside and held uninvested in
trust for the benefit of the Certificateholders not presenting and surrendering
their Certificates in the aforesaid manner and shall be disposed of in
accordance with this Section 9.01 and Section 4.01(g).
Section 9.02 Additional Termination Requirements. (a) In the event
any Master Servicer, the Special Servicer, the Holders of the Controlling Class
or the Holders of the Class LR Certificates purchases all of the Mortgage Loans
and the Trust Fund's portion of each REO Property remaining in the Trust Fund as
provided in Section 9.01, the Trust Fund shall be terminated in accordance with
the following additional requirements, which meet the definition of a "qualified
liquidation" in Section 860F(a)(4) of the Code:
(i) the Trustee shall specify the date of adoption of the plan of
complete liquidation (which shall be the date of mailing of the notice
specified in Section 9.01) in a statement attached to each of the
Upper-Tier REMIC's, the Middle-Tier REMIC's and the Lower-Tier REMIC's
final Tax Return pursuant to Treasury Regulations Section 1.860F-1;
(ii) during the 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the Trustee
shall sell all of the assets of the Trust Fund to the applicable Master
Servicer, the Special Servicer, the Holders of the Controlling Class or
the Holders of the Class LR Certificates, as applicable, for cash; and
(iii) within such 90 day liquidation period and immediately
following the making of the final payment on the Uncertificated Lower-Tier
Interests and the Certificates, the Trustee shall distribute or credit, or
cause to be distributed or credited, to the Holders of the Class LR
Certificates (in the case of the Lower-Tier REMIC), the Class MR
Certificates (in the case of the Middle-Tier REMIC) and the Class R
Certificates (in the case of the Upper-Tier REMIC) all cash on hand (other
than cash retained to meet claims), and the Trust Fund and each of the
Lower-Tier REMIC, the Middle-Tier REMIC and the Upper-Tier REMIC shall
terminate at that time.
(b) In the event the Trust Fund is to be terminated while the Swap
Contract is still in effect, the Trustee shall promptly notify the Swap
Counterparty in writing of the date on which the Trust Fund is to be terminated
and that the notional amount of the Swap Contract will be reduced to zero on
such date. Based on the date of termination, the Trustee shall calculate the
Class A-2SFL Net Swap Payment and the Class A-JFL Net Swap Payment, if any, as
specified in Section 3.31, and prior to any final distributions to the Holders
of the Class A-2SFL Certificates and the Class A-JFL Certificates, pursuant to
Section 9.01, shall pay such Class A-2SFL Net Swap Payment and Class A-JFL Net
Swap Payment, if any, to the Swap Counterparty. In the event that any fees
(including termination fees) are payable to the Swap Counterparty in connection
with such termination, such fees will be payable to the Swap Counterparty solely
from amounts remaining in the Floating Rate Account after all distributions to
the Class A-2SFL Certificates and the Class A-JFL Certificates are made pursuant
to Section 9.01.
[End of Article IX]
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration. (a) The Trustee shall make
elections or cause elections to be made to treat each of the Lower-Tier REMIC,
the Middle-Tier REMIC and the Upper-Tier REMIC as a REMIC under the Code and, if
necessary, under Applicable State and Local Tax Law. Each such election will be
made on Form 1066 or other appropriate federal tax return for the taxable year
ending on the last day of the calendar year in which the Uncertificated
Lower-Tier Interests, Uncertificated Middle-Tier Interests and the Certificates
are issued. For the purposes of the REMIC election in respect of the Upper-Tier
REMIC, each Class of the Regular Certificates (other than the Class A-2SFL
Certificates and the Class A-JFL Certificates) and the Class A-2SFL Regular
Interest and the Class A-JFL Regular Interest shall be designated as the
"regular interests" and the Class R Certificates shall be designated as the sole
class of "residual interests" in the Upper-Tier REMIC. For purposes of the REMIC
election in respect of the Middle-Tier REMIC, each Class of Uncertificated
Middle-Tier Interests shall be designated as the "regular interests" and the
Class MR Certificates shall be designated as the sole class of "residual
interests" in the Middle-Tier REMIC. For purposes of the REMIC election in
respect of the Lower-Tier REMIC, each Class of Uncertificated Lower-Tier
Interests shall be designated as the "regular interests" and the Class LR
Certificates shall be designated as the sole class of "residual interests" in
the Lower-Tier REMIC. None of the Special Servicer, the Master Servicers nor the
Trustee shall permit the creation of any "interests" (within the meaning of
Section 860G of the Code) in the Lower-Tier REMIC, the Middle-Tier REMIC or the
Upper-Tier REMIC other than the foregoing interests.
(b) The Closing Date is hereby designated as the "startup day" of
each of the Lower-Tier REMIC, the Middle-Tier REMIC and the Upper-Tier REMIC
within the meaning of Section 860G(a)(9) of the Code.
(c) The Trustee shall act on behalf of each REMIC in relation to any
tax matter or controversy involving any REMIC and shall represent each REMIC in
any administrative or judicial proceeding relating to an examination or audit by
any governmental taxing authority with respect thereto. The legal expenses,
including without limitation attorneys' or accountants' fees, and costs of any
such proceeding and any liability resulting therefrom shall be expenses of the
Trust Fund and the Trustee shall be entitled to reimbursement therefor out of
amounts attributable to the Mortgage Loans and any REO Properties on deposit in
the Certificate Account as provided by Section 3.05(a) unless such legal
expenses and costs are incurred by reason of the Trustee's willful misfeasance,
bad faith or gross negligence. The Holder of the largest Percentage Interest in
each of the (i) Class R, (ii) Class MR and (iii) Class LR Certificates shall be
designated, in the manner provided under Treasury Regulations Section
1.860F-4(d) and temporary Treasury Regulations Section 301.6231(a)(7)-1T, as the
"tax matters person" of the (i) Upper-Tier REMIC, (ii) the Middle-Tier REMIC and
(iii) the Lower-Tier REMIC, respectively. By their acceptance thereof, the
Holders of the largest Percentage Interest in each of the (i) Class R, (ii)
Class MR and (iii) Class LR Certificates hereby agrees to irrevocably appoint
the Trustee as their agent to perform all of the duties of the "tax matters
person" for (i) the Upper-Tier REMIC, (ii) the Middle-Tier REMIC and (iii) the
Lower-Tier REMIC, respectively.
(d) The Trustee shall prepare or cause to be prepared all of the Tax
Returns that it determines are required with respect to each of the Lower-Tier
REMIC, the Middle-Tier REMIC and the Upper-Tier REMIC created hereunder, and
shall sign and file or cause to be filed such Tax Returns in a timely manner.
The ordinary expenses of preparing such returns shall be borne by the Trustee
without any right of reimbursement therefor.
(e) The Trustee shall provide or cause to be provided (i) to any
Transferor of a Class R Certificate, Class MR Certificate or Class LR
Certificate such information as is necessary for the application of any tax
relating to the transfer of such Class R Certificate, Class MR Certificate or
Class LR Certificate to any Person who is a Disqualified Organization, or in the
case of a Transfer to an Agent thereof, to such Agent, (ii) to the
Certificateholders such information or reports as are required by the Code or
the REMIC Provisions including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption) and
(iii) to the Internal Revenue Service on Form 8811, within 30 days after the
Closing Date, the name, title, address and telephone number of the "tax matters
person" who will serve as the representative of each of the Lower-Tier REMIC,
the Middle-Tier REMIC and the Upper-Tier REMIC created hereunder.
(f) The Trustee shall take such actions and shall cause the Trust
Fund to take such actions as are reasonably within the Trustee's control and the
scope of its duties more specifically set forth herein as shall be necessary to
maintain the status of each of the Lower-Tier REMIC, the Middle-Tier REMIC and
the Upper-Tier REMIC as a REMIC under the REMIC Provisions. Neither the Master
Servicers nor the Special Servicer shall knowingly or intentionally take any
action, cause the Trust Fund to take any action or fail to take (or fail to
cause to be taken) any action reasonably within its control and the scope of
duties more specifically set forth herein, that, under the REMIC Provisions, if
taken or not taken, as the case may be, could (i) endanger the status of the
Lower-Tier REMIC, the Middle-Tier REMIC or the Upper-Tier REMIC as a REMIC or
(ii) result in the imposition of a tax upon the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC or the Trust Fund (including but not
limited to the tax on "prohibited transactions" as defined in Section 860F(a)(2)
of the Code and the tax on contributions to a REMIC set forth in Section 860G(d)
of the Code, but not including the tax on "net income from foreclosure
property") (either such event, an "Adverse REMIC Event") unless the Trustee
receives an Opinion of Counsel (at the expense of the party seeking to take such
action or, if such party fails to pay such expense, and the Trustee determines
that taking such action is in the best interest of the Trust Fund and the
Certificateholders, at the expense of the Trust Fund, but in no event at the
expense of the Trustee) to the effect that the contemplated action will not,
with respect to the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC or
the Upper-Tier REMIC created hereunder, endanger such status or, unless the
Trustee determines in its sole discretion to indemnify the Trust Fund against
such tax, result in the imposition of such a tax (not including a tax on "net
income from foreclosure property"). The Trustee shall not take or fail to take
any action (whether or not authorized hereunder) as to which it has received an
Opinion of Counsel to the effect that an Adverse REMIC Event could occur with
respect to such action or inaction. In addition, prior to taking any action with
respect to the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC or the
Upper-Tier REMIC or any of their respective assets, or causing the Trust Fund,
the Lower-Tier REMIC, the Middle-Tier REMIC or the Upper-Tier REMIC to take any
action, which is not expressly permitted under the terms of this Agreement, the
Trustee will determine whether such action could cause an Adverse REMIC Event to
occur with respect to the Trust Fund, the Lower-Tier REMIC, the Middle-Tier
REMIC or the Upper-Tier REMIC and the Trustee shall not take any action or cause
the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC or the Upper-Tier
REMIC to take any such action as to which it has determined that an Adverse
REMIC Event could occur. The Trustee may consult with counsel to make such
written advice, and the cost of same shall be borne by the party seeking to take
the action not expressly permitted by this Agreement, but in no event at the
expense of the Trustee. At all times as may be required by the Code, the Trustee
will to the extent within its control and the scope of its duties more
specifically set forth herein, maintain substantially all of the assets of each
of the Lower-Tier REMIC, the Middle-Tier REMIC and the Upper-Tier REMIC as
"qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any applicable federal, state or local tax,
including interest, penalties or assessments, additional amounts or additions to
tax, is imposed on the Lower-Tier REMIC, the Middle-Tier REMIC or the Upper-Tier
REMIC, such tax shall be charged against amounts otherwise distributable to the
Holders of the Certificates, except as provided in the last sentence of this
Section 10.01(g); provided that with respect to the estimated amount of tax
imposed on any "net income from foreclosure property" pursuant to Section
860G(c) of the Code or any similar tax imposed by a state or local tax
authority, the Special Servicer shall retain in the related REO Account a
reserve for the payment of such taxes in such amounts and at such times as it
shall deem appropriate (or as advised by the Trustee in writing), and shall
remit to the applicable Master Servicer such reserved amounts as such Master
Servicer shall request in order to pay such taxes. Except as provided in the
preceding sentence, the applicable Master Servicer shall withdraw from the
applicable Certificate Account sufficient funds to pay or provide for the
payment of, and to actually pay, such tax as is estimated to be legally owed by
the Lower-Tier REMIC, the Middle-Tier REMIC or the Upper-Tier REMIC (but such
authorization shall not prevent the Trustee from contesting, at the expense of
the Trust Fund (other than as a consequence of a breach of its obligations under
this Agreement), any such tax in appropriate proceedings, and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The Trustee is hereby authorized to and shall segregate, into a
separate non-interest bearing account, the net income from any "prohibited
transaction" under Section 860F(a) of the Code or the amount of any taxable
contribution to the Lower-Tier REMIC, the Middle-Tier REMIC or the Upper-Tier
REMIC after the Startup Day that is subject to tax under Section 860G(d) of the
Code and use such income or amount, to the extent necessary, to pay such
prohibited transactions tax. To the extent that any such tax (other than any
such tax paid in respect of "net income from foreclosure property") is paid to
the Internal Revenue Service or applicable state or local tax authorities, the
Trustee shall retain an equal amount from future amounts otherwise distributable
to the Holders of Residual Certificates (as applicable) and shall distribute
such retained amounts, (x) in the case of the Uncertificated Lower-Tier REMIC
Interests, to the Middle-Tier REMIC to the extent they are fully reimbursed for
any Collateral Support Deficit arising therefrom and then to the Holders of the
Class LR Certificates in the manner specified in Section 4.01(b), (y) in the
case of the Uncertificated Middle-Tier REMIC Interests, to the Upper-Tier REMIC
to the extent they are fully reimbursed for any Collateral Support Deficit
arising therefrom and then to the Holders of the Class MR Certificates in the
manner specified in Section 4.01(b) and (z) in the case of the Upper-Tier REMIC,
to the Holders of Class A, Class A-S (other than the Class A-2SFL Certificates),
Class A-M, Class A-MS, Class A-J, Class A-JS, Class B, Class B-S, Class C, Class
C-S, Class D, Class D-S, Class E, Class E-S, Class F, Class F-S, Class G, Class
G-S, Class H, Class H-S, Class J, Class K, Class L, Class M, Class N, Class P,
Class NR and Class X Certificates and the Class A-2SFL and the Class A-JFL
Regular Interests, as applicable, in the manner specified in Section 4.01(a), to
the extent they are fully reimbursed for any Collateral Support Deficit, arising
therefrom and then to the Holders of the Class R Certificates. None of the
Trustee, the Master Servicers or the Special Servicer shall be responsible for
any taxes imposed on the Lower-Tier REMIC, the Middle-Tier REMIC or the
Upper-Tier REMIC except to the extent such taxes arise as a consequence of a
breach of their respective obligations under this Agreement which breach
constitutes willful misfeasance, bad faith, or negligence by such party.
(h) The Trustee shall, for federal income tax purposes, maintain or
cause to be maintained books and records with respect to each of the Lower-Tier
REMIC, the Middle-Tier REMIC and the Upper-Tier REMIC on a calendar year and on
an accrual basis or as otherwise may be required by the REMIC Provisions.
(i) Following the Startup Day, the Trustee shall not accept any
contributions of assets to the Lower-Tier REMIC, the Middle-Tier REMIC and the
Upper-Tier REMIC unless the Trustee shall have received an Opinion of Counsel
(at the expense of the party seeking to make such contribution) to the effect
that the inclusion of such assets in the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC will not (i) cause the Lower-Tier REMIC, the Middle-Tier
REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interests or Certificates are outstanding or (ii)
subject any of the Trust Fund or the Lower-Tier REMIC, the Middle-Tier REMIC or
the Upper-Tier REMIC to any tax under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(j) The Trustee shall not enter into any arrangement by which the
Trust Fund or the Lower-Tier REMIC, the Middle-Tier REMIC or the Upper-Tier
REMIC will receive a fee or other compensation for services nor permit the Trust
Fund or the Lower-Tier REMIC, the Middle-Tier REMIC or the Upper-Tier REMIC to
receive any income from assets other than "qualified mortgages" as defined in
Section 860G(a)(3) of the Code or "permitted investments" as defined in Section
860G(a)(5) of the Code.
(k) Solely for the purposes of Treasury Regulations Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" by which the
Certificate Balance or Notional Amount of the Class A-2SFL Regular Interest and
the Class A-JFL Regular Interest and each Class of Certificates (other than the
Class A-2SFL, the Class A-JFL, Class S and Residual Certificates) representing a
"regular interest" in the Upper-Tier REMIC and by which the Lower-Tier Principal
Amount of each Class of Uncertificated Lower-Tier Interests representing a
"regular interest" in the Lower-Tier REMIC would be reduced to zero and by which
the Middle-Tier Principal Amount of each Class of Uncertificated Middle-Tier
Interests representing a "regular interest" in the Middle-Tier REMIC would be
reduced to zero is the Rated Final Distribution Date.
(l) None of the Trustee, the Master Servicers or the Special
Servicer, as applicable, shall sell, dispose of or substitute for any of the
Mortgage Loans (except in connection with (i) the default, imminent default or
foreclosure of a Mortgage Loan, including but not limited to, the acquisition or
sale of a Mortgaged Property acquired by foreclosure or deed in lieu of
foreclosure, (ii) the bankruptcy of the Trust Fund, (iii) the termination of the
Trust Fund pursuant to Article IX of this Agreement or (iv) a purchase of
Mortgage Loans pursuant to Article II or III of this Agreement) or acquire any
assets for the Trust Fund or the Lower-Tier REMIC, the Middle-Tier REMIC or the
Upper-Tier REMIC or sell or dispose of any investments in the Certificate
Account or the REO Account for gain unless it has received an Opinion of Counsel
that such sale, disposition or substitution will not (a) affect adversely the
status of the Lower-Tier REMIC, the Middle-Tier REMIC or the Upper-Tier REMIC as
a REMIC or (b) unless the Trustee, each Master Servicer or the Special Servicer,
as applicable, has determined in its sole discretion to indemnify the Trust Fund
against such tax, cause the Trust Fund or the Lower-Tier REMIC, the Middle-Tier
REMIC or the Upper-Tier REMIC to be subject to a tax on "prohibited
transactions" pursuant to the REMIC Provisions.
Section 10.02 Use of Agents. (a) The Trustee shall execute all of
its obligations and duties under this Article X through its Corporate Trust
Office. The Trustee may execute any of its obligations and duties under this
Article X either directly or by or through agents or attorneys. The Trustee
shall not be relieved of any of its duties or obligations under this Article X
by virtue of the appointment of any such agents or attorneys.
(b) The Trustee may execute any of its obligations and duties under
this Article X either directly or by or through agents or attorneys. The Trustee
shall not be relieved of any of its duties or obligations under this Article X
by virtue of the appointment of any such agents or attorneys.
Section 10.03 Depositor, Master Servicers and Special Servicer to
Cooperate with Trustee. (a) The Depositor shall provide or cause to be provided
to the Trustee within ten (10) days after the Depositor receives a request from
the Trustee, all information or data that the Trustee reasonably determines to
be relevant for tax purposes as to the valuations and issue prices of the
Certificates, including, without limitation, the price, yield, Prepayment
Assumptions and projected cash flow of the Certificates.
(b) Each Master Servicer and the Special Servicer shall each furnish
such reports, certifications and information, and upon reasonable notice and
during normal business hours, access to such books and records maintained
thereby, as may relate to the Certificates or the Trust Fund and as shall be
reasonably requested by the Trustee in order to enable it to perform its duties
hereunder.
Section 10.04 Appointment of REMIC Administrators. (a) The Trustee
may appoint at the Trustee's expense, one or more REMIC Administrators, which
shall be authorized to act on behalf of the Trustee in performing the functions
set forth in Section 10.01 herein. The Trustee shall cause any such REMIC
Administrator to execute and deliver to the Trustee an instrument in which such
REMIC Administrator shall agree to act in such capacity, with the obligations
and responsibilities herein. The appointment of a REMIC Administrator shall not
relieve the Trustee from any of its obligations hereunder, and the Trustee shall
remain responsible and liable for all acts and omissions of the REMIC
Administrator. Each REMIC Administrator must be acceptable to the Trustee and
must be organized and doing business under the laws of the United States of
America or of any State and be subject to supervision or examination by federal
or state authorities. In the absence of any other Person appointed in accordance
herewith acting as REMIC Administrator, the Trustee hereby agrees to act in such
capacity in accordance with the terms hereof. If Xxxxx Fargo Bank, N.A. is
removed as Trustee, then Xxxxx Fargo Bank, N.A. shall be terminated as REMIC
Administrator.
(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Trustee
or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Master Servicers, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any REMIC
Administrator by giving written notice of termination to such REMIC
Administrator, the Master Servicers, the Certificate Registrar and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any REMIC Administrator shall cease to be eligible in
accordance with the provisions of this Section 10.04, the Trustee may appoint a
successor REMIC Administrator, in which case the Trustee shall given written
notice of such appointment to the Master Servicers and the Depositor and shall
mail notice of such appointment to all Certificateholders; provided, however,
that no successor REMIC Administrator shall be appointed unless eligible under
the provisions of this Section 10.04. Any successor REMIC Administrator upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as REMIC Administrator. No REMIC Administrator
shall have responsibility or liability for any action taken by it as such at the
direction of the Trustee.
[End of Article X]
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness. The parties
hereto acknowledge and agree that the purpose of Article XI of this Agreement is
to facilitate compliance by the Depositor with the provisions of Regulation AB
and the related rules and regulations of the Commission. Neither the Depositor
nor the Master Servicers shall exercise their rights to request delivery of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act, the Xxxxxxxx-Xxxxx Act and, in each case, the rules and
regulations of the Commission thereunder; provided that in all instances the
reports and certificates contemplated by Sections 11.09, 11.10 and 11.11 shall
be provided to the Rating Agencies as required thereunder; provided, however,
that the Trustee shall be deemed to have satisfied any delivery requirements to
the Rating Agencies thereunder by making such reports and certificates available
on its internet website. The parties hereto acknowledge that interpretations of
the requirements of Regulation AB may change over time, due to interpretive
guidance provided by the Commission or its staff, and agree to comply with
requests made by the Depositor or the applicable Master Servicer 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
X.X. Xxxxxx Chase Commercial Mortgage Securities Trust 2007-LDP10 Commercial
Mortgage Pass-Through Certificates, Series 2007-LDP10, each of the Master
Servicer, the Special Servicer, the Co-Trustee and the Trustee shall cooperate
fully with the Depositor and the Trustee, as the case may be, to deliver or make
available to the Depositor or the Trustee (including any of their assignees or
designees), any and all statements, reports, certifications, records and any
other information (in its possession or reasonably attainable) necessary in the
good faith determination of the Depositor or the Trustee, as applicable, to
permit the Depositor to comply with the provisions of Regulation AB, together
with such disclosures relating to the applicable Master Servicer, the Special
Servicer, the Co-Trustee and the Trustee, as applicable, and any Sub-Servicer,
or the servicing of the Mortgage Loans, reasonably believed by the Depositor or
the Trustee, as applicable, in good faith to be necessary in order to effect
such compliance. Each party to this Agreement shall have a reasonable period of
time to comply with any written request made under this Section 11.01, but in
any event, shall, upon reasonable advance written request, provide information
in sufficient time to allow the Depositor or the Trustee, as applicable, to
satisfy any related filing requirements. For purposes of this Article XI, to the
extent any party has an obligation to exercise commercially reasonable efforts
to cause a third party to perform, such party hereunder shall not be required to
bring any legal action against such third party in connection with such
obligation.
Section 11.02 Succession; Subcontractors. (a) For so long as the
Trust is subject to the reporting requirements of the Exchange Act (in addition
to any requirements contained in Section 11.07), in connection with the
succession to any Reporting Servicer by any Person (i) into which any Reporting
Servicer may be merged or consolidated, or (ii) which may be appointed as a
successor to any Master Servicer and Special Servicer or any Subservicer (other
than a succession or appointment pursuant to Section 7.01(b) for which notice
may be delivered as soon as reasonably practicable), any Reporting Servicer
shall provide to the Depositor and the Trustee, at least 15 calendar days (or
such shorter period agreed to by the Depositor) prior to the effective date of
such succession or appointment, (x) written notice to the Depositor of such
succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Depositor, all information relating to such
successor reasonably requested by the Depositor so that the Depositor may comply
with its reporting obligation under Item 6.02 of Form 8-K pursuant to the
Exchange Act (if such reports under the Exchange Act are required to be filed
under the Exchange Act); provided, however that if disclosing such information
prior to such effective date would violate any applicable law or confidentiality
agreement, the Reporting Servicer, as applicable, shall submit such disclosure
to the Depositor and the Trustee no later than the first Business Day after the
effective date of such succession or appointment.
(b) For so long as the Trust is subject to the reporting
requirements of the Exchange Act (in addition to any requirements contained in
Section 11.07), each of the Master Servicers, the Special Servicer, the
Co-Trustee, the Sub-Servicer and the Trustee (each of the Master Servicers, the
Special Servicer, the Co-Trustee, the Trustee and each Sub-Servicer, for
purposes of this paragraph, a "Servicer") is permitted to utilize one or more
Subcontractors to perform certain of its obligations hereunder. For so long as
the Trust is subject to the reporting requirements of the Exchange Act (in
addition to any requirements contained in Section 11.07), such Servicer shall
promptly upon request provide to the Depositor a written description (in form
and substance satisfactory to the Depositor) of the role and function of each
Subcontractor that is a Servicing Function Participant utilized by such
Servicer, specifying the identity of each Subcontractor that is a Servicing
Function Participant, and the elements of the Servicing Criteria that will be
addressed in assessments of compliance provided by such Subcontractor. As a
condition to the utilization by such Servicer of any Subcontractor determined to
be a Servicing Function Participant, such Servicer shall (i) with respect to any
such Subcontractor engaged by such Servicer that is an Initial Sub-Servicer, use
commercially reasonable efforts to cause, and (ii) with respect to any other
such subcontractor with which it has entered into a servicing relationship,
cause such Subcontractor used by such Servicer for the benefit of the Depositor
and the Trustee to comply with the provisions of Section 11.10 and Section 11.11
of this Agreement to the same extent as if such Subcontractor were such
Servicer. With respect to any Servicing Function Participant engaged by such
Servicer that is an Initial Sub-Servicer, such Servicer shall be responsible for
using commercially reasonable efforts to obtain, and with respect to each other
Servicing Function Participant engaged by such Servicer, obtain from each such
Servicing Function Participant and delivering to the applicable Persons any
assessment of compliance report and related accountant's attestation required to
be delivered by such Subcontractor under Section 11.10 and Section 11.11, in
each case, as and when required to be delivered.
(c) Notwithstanding the foregoing, if a Servicer engages a
Subcontractor, other than an Initial Sub-Servicer, in connection with the
performance of any of its duties under this Agreement, such Servicer shall be
responsible for determining whether such Subcontractor is a "servicer" within
the meaning of Item 1101 of Regulation AB and whether any such Subcontractor
meets the criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB. If a
Servicer determines, pursuant to the preceding sentence, that such Subcontractor
is a "servicer" within the meaning of Item 1101 of Regulation AB and meets the
criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB, then such
Subcontractor shall be deemed to be a Sub-Servicer for purposes of this
Agreement, the engagement of such Sub-Servicer, other than an Initial
Sub-Servicer, shall not be effective unless and until notice is given to the
Depositor and the Trustee of any such Sub-Servicer and Subservicing Agreement.
Other than with respect to the Initial Sub-Servicer, no Subservicing Agreement
shall be effective until 15 days after such written notice is received by the
Depositor and the Trustee (or such shorter period as is agreed to by the
Depositor). Such notice shall contain all information reasonably necessary to
enable the Trustee to accurately and timely report the event under Item 6.02 of
Form 8-K pursuant to the Exchange Act (if such reports under the Exchange Act
are required to be filed under the Exchange Act).
(d) As a condition to the succession to the Co-Trustee, Trustee or
Special Servicer under this Agreement by any Person (i) into which such party
may be merged or consolidated, or (ii) which may be appointed as a successor to
any such party, that party shall notify the Depositor and each Rating Agency, at
least 15 calendar days prior to the effective date of such succession or
appointment (or if such prior notice would violate applicable law or any
applicable confidentiality agreement, no later than one (1) Business Day after
such effective date of succession) and shall furnish to the Depositor in writing
and in form and substance reasonably satisfactory to the Depositor, all
information reasonably necessary for the Trustee to accurately and timely
report, pursuant to Section 11.07, the event under Item 6.02 of Form 8-K
pursuant to the Exchange Act (if such reports under the Exchange Act are
required to be filed under the Exchange Act).
Section 11.03 Filing Obligations. (a) The Reporting Servicers shall
reasonably cooperate with the Depositor in connection with the satisfaction of
the Trust's reporting requirements under the Exchange Act. Pursuant to Sections
11.04, 11.05 and 11.06 below, the Trustee shall prepare for execution by the
Depositor any Forms 8-K, 10-D and 10-K required by the Exchange Act, in order to
permit the timely filing thereof, and the Trustee shall file (via the
Commission's Electronic Data Gathering and Retrieval System ("Xxxxx")) such
Forms executed by the Depositor.
(b) In the event that the Trustee is unable to timely file with the
Commission all or any required portion of any Form 8-K, 10-D or 10-K required to
be filed by this Agreement because required disclosure information was either
not delivered to it or delivered to it after the delivery deadlines set forth in
this Agreement, the Trustee will promptly notify (which notice may be sent by
fax or by e-mail notwithstanding the provisions of Section 12.05 and shall
include 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) the Depositor and each Reporting Servicer that failed
to make such disclosure. In the case of Forms 10-D and 10-K, the Depositor, the
Master Servicers, the Special Servicer, the Co-Trustee and the Trustee will
thereupon cooperate to prepare and file a Form 12b-25 and a Form 10-D/A or Form
10-K/A, as applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case
of Form 8-K, the Trustee will, upon receipt of all required Form 8-K Disclosure
Information and upon the approval and direction of the Depositor, include such
disclosure information on the next succeeding Form 10-D to be filed for the
Trust. In the event that any previously filed Form 8-K, Form 10-D or Form 10-K
needs to be amended, the Trustee will notify the Depositor, and such other
parties as needed and the parties hereto will cooperate with the Trustee to
prepare any necessary Form 8-K/A, Form 10-D/A or Form 10-K/A ; provided however
that the Trustee will not be required to notify the Depositor or any other party
hereto in advance of amending Form 10-D where such amendment is solely for the
purpose of re-stating the Statement to Certificateholders. 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 the Depositor or a senior officer of the Depositor in
charge of securitization, as applicable. The parties to this Agreement
acknowledge that the performance by the Trustee of its duties under this Section
11.03 related to the timely preparation, arrangement for execution and filing of
Form 15, a Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K is
contingent upon the parties observing all applicable deadlines in the
performance of their duties under Sections 11.03, 11.04, 11.05, 11.06, 11.07,
11.08, 11.09, 11.10 and 11.11. The Trustee shall have no liability for any loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare, arrange for execution and/or timely file any such Form 15, Form 12b-25
or any amendments to Form 8-K, Form 10-D or Form 10-K, where such failure
results from the Trustee's inability or failure to receive, on a timely basis,
any information from any other party hereto needed to prepare, arrange for
execution or file such Form 15, Form 12b-25 or any amendments to Forms 8-K, Form
10-D or Form 10-K, not resulting from its own negligence, bad faith or willful
misconduct.
Section 11.04 Form 10-D Filings. (a) Within 15 days after each
Distribution Date (subject to permitted extensions under the Exchange Act), the
Trustee shall prepare and file on behalf of the Trust any Form 10-D required by
the Exchange Act, in form and substance as required by the Exchange Act. The
Trustee shall file each Form 10-D with a copy of the related Statement to
Certificateholders attached thereto. Any disclosure in addition to the Statement
to Certificateholders that is required to be included on Form 10-D ("Additional
Form 10-D Disclosure") shall, pursuant to the following paragraph be reported by
the parties set forth on Exhibit X to the Depositor and the Trustee and approved
by the Depositor, and the Trustee will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure (other
than Additional Form 10-D Disclosure required to be reported by it as set forth
herein), absent such reporting, direction and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, as set forth on Exhibit X hereto, within 5 calendar days after
the related Distribution Date, (i) the parties listed on Exhibit X hereto shall
be required to provide to the Trustee and the Depositor, to the extent a
Regulation AB Servicing Officer or Responsible Officer, as the case may be,
thereof has actual knowledge, in XXXXX-compatible format (to the extent
available to such party in such format), or in such other format as otherwise
agreed upon by the Trustee, the Depositor and such providing parties, the form
and substance of the Additional Form 10-D Disclosure described on Exhibit X
applicable to such party, (ii) the parties listed on Exhibit X hereto shall
include with such Additional Form 10-D Disclosure, an Additional Disclosure
Notification in the form attached hereto as Exhibit AA and (iii) the Depositor
shall approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Trustee has
no duty under this Agreement to monitor or enforce the performance by the
parties listed on Exhibit X of their duties under this paragraph or proactively
solicit or procure from such parties any Additional Form 10-D Disclosure
information. The Depositor will be responsible for any reasonable fees assessed
and expenses incurred by the Trustee in connection with including any Additional
Form 10-D Disclosure on Form 10-D pursuant to this paragraph.
(b) After preparing the Form 10-D, the Trustee shall forward
electronically a copy of the Form 10-D to the Depositor for review no later than
10 calendar days after the related Distribution Date. Within two Business Days
after receipt of such copy, but no later than the 2 Business Days prior to the
15th calendar day after the Distribution Date, the Depositor shall notify the
Trustee in writing (which may be furnished electronically) of any changes to or
approval of such Form 10-D and, a duly authorized officer of the Depositor shall
sign the Form 10-D and return an electronic or fax copy of such signed Form 10-D
(with an original executed hard copy to follow by overnight mail) to the
Trustee. Alternatively, if the Trustee agrees, the Depositor may deliver to the
Trustee manually signed copies of a power of attorney meeting the requirements
of Item 601(b)(24) of Regulation S-K under the Securities Act, and certified
copies of a resolution of the Depositor's board of directors authorizing such
power of attorney, each to be filed with each Form 10-D, in which case the
Trustee shall sign such Forms 10-D as attorney in fact for the Depositor. In the
event that the Trustee signs the Forms 10-D as attorney in fact for the
Depositor pursuant to such powers of attorney, the Trustee shall deliver a draft
of each such Form 10-D to the Depositor no later than 2 Business Days prior to
the filing deadline applicable to such report. If a Form 10-D cannot be filed on
time or if a previously filed Form 10-D needs to be amended, the Trustee will
follow the procedures set forth in Section 11.03(b). Promptly after filing with
the Commission, the Trustee will make available on its internet website a final
executed copy of each Form 10-D prepared and filed by the Trustee. The signing
party at the Depositor can be contacted at Xxxxxx Xxxxx, Managing Director and
Associate General Counsel, JPMorgan Chase & Co., 000 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (000) 000-0000, with a copy to Xxxxxx
Xxxxx, Vice President, X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (212)
834-6593. The parties to this Agreement acknowledge that the performance by the
Trustee of its duties under this Section 11.04(b) related to the timely
preparation, arrangement for execution and filing of Form 10-D is contingent
upon such parties observing all applicable deadlines in the performance of their
duties under this Section 11.04(b). The Trustee shall have no liability for any
loss, expense, damage, or claim arising out of or with respect to any failure to
properly prepare, arrange for execution and/or timely file such Form 10-D, where
such failure results from the Trustee's inability or failure to receive, on a
timely basis, any information from any party to this Agreement needed to
prepare, arrange for execution or file such Form 10-D, not resulting from its
own negligence, bad faith or willful misconduct.
Form 10-D requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Trustee that the Depositor has filed all such required reports
during the preceding 12 months and that it has been subject to such filing
requirement for the past 90 days. The Depositor shall notify the Trustee in
writing, no later than the fifth calendar day after the related Distribution
Date with respect to the filing of a report on Form 10-D if the answer to the
questions should be "no." The Trustee shall be entitled to rely on such
representations in preparing, executing and/or filing any Form 10-D.
Section 11.05 Form 10-K Filings. (a) Within 90 days after the end of
each fiscal year of the Trust (it being understood that the fiscal year for the
Trust ends on December 31 of each year) or such earlier date as may be required
by the Exchange Act (the "10-K Filing Deadline"), commencing in March 2008, the
Trustee shall prepare and file on behalf of the Trust a Form 10-K, in form and
substance as required by the Exchange Act. Each such Form 10-K shall include the
following items, in each case to the extent they have been delivered to the
Trustee within the applicable time frames set forth in this Agreement:
(i) an annual compliance statement for each Master Servicer, the
Special Servicer and each Additional Servicer engaged by each Master
Servicer or the Special Servicer, as described under Section 11.09;
(ii) (A) the annual reports on assessment of compliance with
Servicing Criteria for the Trustee, the Co-Trustee, each Master Servicer,
the Special Servicer, each Additional Servicer engaged by any Master
Servicer and each Servicing Function Participant engaged by any Master
Servicer, the Special Servicer, the Co-Trustee or Trustee, as described
under Section 11.10; and
(B) if any such report on assessment of compliance with
servicing criteria described under Section 11.10 identifies any
material instance of noncompliance, disclosure identifying such
instance of noncompliance, or if such report on assessment of
compliance with servicing criteria described under Section 11.10 is
not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation why such report is not
included;
(iii) (A) the registered public accounting firm attestation report
for the Trustee, the Co-Trustee, each Master Servicer, the Special
Servicer, each Additional Servicer engaged by any Master Servicer, the
Special Servicer and each Servicing Function Participant engaged by any
Master Servicer, the Special Servicer, the Co-Trustee or the Trustee, as
described under Section 11.11; and
(B) if any registered public accounting firm attestation
report described under Section 11.11 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm
attestation report is not included as an exhibit to such Form 10-K,
disclosure that such report is not included and an explanation why
such report is not included; and
(iv) a certification in the form attached hereto as Exhibit Q, with
such changes as may be necessary or appropriate as a result of changes
promulgated by the Commission (the "Xxxxxxxx-Xxxxx Certification"), which
shall, except as described below, be signed by the senior officer of the
Depositor in charge of securitization.
Any disclosure or information in addition to (i) through (iv) above
that is required to be included on Form 10-K ("Additional Form 10-K Disclosure")
shall, pursuant to the following paragraph be reported by the parties set forth
on Exhibit Z to the Depositor and the Trustee and approved by the Depositor and
the Trustee will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-K Disclosure (other than such
Additional Form 10-K Disclosure which is to be reported by it as set forth
herein), absent such reporting, direction and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, no later than March 15, commencing in March 2008 (i) the
parties listed on Exhibit Y hereto shall be required to provide to the Trustee
and the Depositor to the extent a Regulation AB Servicing Officer or Responsible
Officer, as the case may be, thereof has actual knowledge, in XXXXX-compatible
format (to the extent available to such party in such format), or in such other
format as otherwise agreed upon by the Trustee and the Depositor and such
providing party, the form and substance of the Additional Form 10-K Disclosure
described on Exhibit Y applicable to such party, (ii) the parties listed on
Exhibit Y hereto shall include with such Additional Form 10-K Disclosure, an
Additional Disclosure Notification in the form attached hereto as Exhibit AA,
and (iii) the Depositor will approve, as to form and substance, or disapprove,
as the case may be, the inclusion of the Additional Form 10-K Disclosure on Form
10-K. The Trustee has no duty under this Agreement to monitor or enforce the
performance by the parties listed on Exhibit Y of their duties under this
paragraph or proactively solicit or procure from such parties any Additional
Form 10-K Disclosure information. The Depositor will be responsible for any
reasonable fees assessed and expenses incurred by the Trustee in connection with
including any Additional Form 10-K Disclosure on Form 10-K pursuant to this
paragraph.
(b) After preparing the Form 10-K, the Trustee shall forward
electronically a copy of the Form 10-K to the Depositor for review no later than
6 Business Days prior to the 10-K Filing Deadline. Within three Business Days
after receipt of such copy, but no later than March 25th, the Depositor shall
notify the Trustee in writing (which may be furnished electronically) of any
changes to or approval of such Form 10-K and the senior officer in charge of
securitization for the Depositor shall sign the Form 10-K and return an
electronic or fax copy of such signed Form 10-K (with an original executed hard
copy to follow by overnight mail) to the Trustee at such time. If a Form 10-K
cannot be filed on time or if a previously filed Form 10-K needs to be amended,
the Trustee shall follow the procedures set forth in Section 11.03(b). Promptly
after filing with the Commission, the Trustee will make available on its
internet website a final executed copy of each Form 10-K prepared and filed by
the Trustee. The signing party at the Depositor can be contacted at Xxxxxx
Xxxxx, Managing Director and Associate General Counsel, JPMorgan Chase & Co.,
000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (212)
270-7473, with a copy to Xxxxxx Xxxxx, Vice President, X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, telecopy number: (000) 000-0000. The parties to this Agreement
acknowledge that the performance by the Trustee of its duties under this Section
11.05 related to the timely preparation, arrangement for execution and filing of
Form 10-K is contingent upon the parties to this Agreement (and any Additional
Servicer or Servicing Function Participant engaged or utilized, as applicable,
by any such parties) observing all applicable deadlines in the performance of
their duties under this Section 11.05. The Trustee shall have no liability for
any loss, expense, damage, claim arising out of or with respect to any failure
to properly prepare, arrange for execution and/or timely file such Form 10-K,
where such failure results from the Trustee's inability or failure or receive,
on a timely basis, any information from the parties to this Agreement (or any
Sub-Servicer or Servicing Function Participant engaged by any such parties)
needed to prepare, arrange for execution or file such Form 10-K on a timely
basis, not resulting from its own negligence, bad faith or willful misconduct.
Form 10-K requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Trustee that the Depositor has filed all such required reports
during the preceding 12 months and that it has been subject to such filing
requirement for the past 90 days. The Depositor shall notify the Trustee in
writing, no later than the 15th calendar day of March in any year in which the
Trust is required to file a Form 10-K if the answer to the questions should be
"no." The Trustee shall be entitled to rely on such representations in
preparing, executing and/or filing any Form 10-K.
Section 11.06 Xxxxxxxx-Xxxxx Certification. Each Form 10-K shall
include a Xxxxxxxx-Xxxxx Certification in the form attached as Exhibit Q
required to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act and the
rules and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff). Each Master Servicer, the
Special Servicer, the Co-Trustee and the Trustee shall provide, and (i) with
respect to each Initial Sub-Servicer engaged by such Master Servicer or the
Special Servicer, as applicable, that is a Servicing Function Participant use
commercially reasonable efforts to cause to provide and (ii) with respect to
each other Servicing Function Participant with which it has entered into a
servicing relationship with respect to the Mortgage Loans, cause to provide, to
the Person who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person")
by March 15 of each year in which the Trust is subject to the reporting
requirements of the Exchange Act, a certification in the form attached hereto as
Exhibit X-0-0, X-0-0, X-0, X-0 and R-4 (each, a "Performance Certification"), as
applicable, on which the Certifying Person, the entity for which the Certifying
Person acts as an officer, and such entity's officers, directors and Affiliates
(collectively with the Certifying Person, "Certification Parties") can
reasonably rely. In addition, in the event that any Companion Loan is deposited
into a commercial mortgage securitization (an "Other Securitization"), each
Reporting Servicer shall comply with all requirements with respect thereto
contemplated by the related Intercreditor Agreement and shall provide to the
Person who signs the Xxxxxxxx-Xxxxx Certification with respect to such Other
Securitization a Performance Certification, in form and substance similar to
applicable Performance Certification (which shall address the matters contained
in the applicable Performance Certification, but solely with respect to the
related Companion Loan) on which such Person, the entity for which the Person
acts as an officer, and such entity's officers, directors and Affiliates can
reasonably rely. With respect to the Skyline Portfolio A-1 Pari Passu Companion
Loan and the Solana Pari Passu Companion Loan, the Trustee will use its
reasonable efforts to procure a Xxxxxxxx-Xxxxx back-up certification from, as
the case may be, the BACM 2007-1 Master Servicer, the BACM 2007-1 Special
Servicer and the BACM 2007-1 Trustee in form and substance similar to a
Performance Certification. With respect to the Americold Pool 2 A-2A Pari Passu
Companion Loan, the Trustee will use its reasonable efforts to procure a
Xxxxxxxx-Xxxxx back-up certification from, as the case may be, the JPMCC
2007-CIBC18 Master Servicer, the JPMCC 2007-CIBC18 Primary Servicer, the JPMCC
2007-CIBC18 Special Servicer and the JPMCC 2007-CIBC18 Trustee in form and
substance similar to a Performance Certification. The senior officer in charge
of securitization for the Depositor shall serve as the Certifying Person on
behalf of the Trust. In addition, each Reporting Servicer shall execute a
reasonable reliance certificate (or may include an equivalent of such reliance
certificate in its Xxxxxxxx-Xxxxx Certification) to enable the Certification
Parties to rely upon each (i) annual compliance statement provided pursuant to
Section 11.09, (ii) annual report on assessment of compliance with servicing
criteria provided pursuant to Section 11.10 and (iii) accountant's report
provided pursuant to Section 11.11, and shall include a certification that each
such annual compliance statement or report discloses any deficiencies or
defaults described to the registered public accountants of such Reporting
Servicer to enable such accountants to render the certificates provided for in
Section 11.11. In the event any Reporting Servicer is terminated or resigns
pursuant to the terms of this Agreement, or any applicable sub-servicing
agreement or primary servicing agreement, as the case may be, such Reporting
Servicer shall provide a certification to the Certifying Person pursuant to this
Section 11.06 with respect to the period of time it was subject to this
Agreement or the applicable sub-servicing or primary servicing agreement, as the
case may be.
Section 11.07 Form 8-K Filings. Within four (4) Business Days after
the occurrence of an event requiring disclosure on Form 8-K (each such event, a
"Reportable Event"), and if requested by the Depositor and to the extent it
receives the Form 8-K Disclosure Information described below), the Trustee shall
prepare and file on behalf of the Trust any Form 8-K, as required by the
Exchange Act, provided that the Depositor shall file the initial Form 8-K in
connection with the issuance of the Certificates. Any disclosure or information
related to a Reportable Event or that is otherwise required to be included on
Form 8-K (other than the initial Form 8-K) ("Form 8-K Disclosure Information")
shall, pursuant to the following paragraph be reported by the parties set forth
on Exhibit Z to the Depositor and the Trustee and approved by the Depositor, and
the Trustee will have no duty or liability for any failure hereunder to
determine or prepare any Form 8-K Disclosure Information or any Form 8-K (other
than such Form 8-K Disclosure Information which is to be reported by it as set
forth herein), absent such reporting, direction and approval.
For so long as the Trust is subject to the Exchange Act reporting
requirements, no later than noon (New York time) on the 2nd Business Day after
the occurrence of a Reportable Event (i) the parties set forth on Exhibit Z
hereto shall be required to provide to the Depositor and the Trustee, to the
extent a Regulation AB Servicing Officer or Responsible Officer, as the case may
be, thereof has actual knowledge, in XXXXX-compatible format (to the extent
available to such party in such format) or in such other format agreed upon by
the Depositor, the Trustee and such providing parties the Form 8-K Disclosure
Information described in Exhibit Z applicable to such party, (ii) the parties
listed on Exhibit Z hereto shall include with such Form 8-K Disclosure
Information, an Additional Disclosure Notification in the form attached hereto
as Exhibit AA and (iii) the Depositor will approve, as to form and substance, or
disapprove, as the case may be, the inclusion of the Form 8-K Disclosure
Information on Form 8-K. The Trustee has no duty under this Agreement to monitor
or enforce the performance by the parties listed on Exhibit AA of their duties
under this paragraph or proactively solicit or procure from such parties any
Form 8-K Disclosure Information. The Depositor will be responsible for any
reasonable fees assessed and expenses incurred by the Trustee in connection with
including any Form 8-K Disclosure Information on Form 8-K pursuant to this
paragraph.
After preparing the Form 8-K, the Trustee shall forward
electronically a copy of the Form 8-K to the Depositor for review no later than
noon (New York City time) on the 3rd Business Day after the Reportable Event,
but in no event earlier than 24 hours after having received the Form 8-K
Disclosure Information pursuant to the immediately preceding paragraph.
Promptly, but no later than the close of business on the third Business Day
after the Reportable Event, the Depositor shall notify the Trustee in writing
(which may be furnished electronically) of any changes to or approval of such
Form 8-K. No later than noon (New York City time) on the 4th Business Day after
the Reportable Event, a duly authorized officer of the Depositor shall sign the
Form 8-K and return an electronic or fax copy of such signed Form 8-K (with an
original executed hard copy to follow by overnight mail) to the Trustee. If a
Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be
amended, the Trustee will follow the procedures set forth in Section 11.03(b).
Promptly after filing with the Commission, the Trustee will, make available on
its internet website a final executed copy of each Form 8-K prepared and filed
by the Trustee. The signing party at the Depositor can be contacted at Xxxxxx
Xxxxx, Managing Director and Associate General Counsel, JPMorgan Chase & Co.,
000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (212)
270-7473, with a copy to Xxxxxx Xxxxx, Vice President, X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, telecopy number: (000) 000-0000. The parties to this Agreement
acknowledge that the performance by the Trustee of its duties under this Section
11.07 related to the timely preparation, arrangement for execution and filing of
Form 8-K is contingent upon such parties observing all applicable deadlines in
the performance of their duties under this Section 11.07. The Trustee shall have
no liability for any loss, expense, damage, claim arising out of or with respect
to any failure to properly prepare, arrange for execution and/or timely file
such Form 8-K, where such failure results from the Trustee's inability or
failure to receive, on a timely basis, any information from the parties to this
Agreement needed to prepare, arrange for execution or file such Form 8-K, not
resulting from its own negligence, bad faith or willful misconduct.
The Master Servicer, the Special Servicer, the Co-Trustee and the
Trustee shall promptly notify (and the Master Servicer and the Special Servicer
shall (i) with respect to each Initial Sub-Servicer that is an Additional
Servicer engaged by such Master Servicer, Special Servicer, Co-Trustee or
Trustee use commercially reasonable efforts to cause and (ii) with respect to
each other Additional Servicer with which it has entered into a servicing
relationship with respect to the Mortgage Loans (other than a party to this
Agreement) cause to promptly notify) the Depositor and the Trustee pursuant to
the 2nd preceding paragraph, but in no event later than noon (New York City
time) on the 2nd Business Day after its occurrence, of any Reportable Event
described on Exhibit Z applicable to such party to the extent a Regulation AB
Servicing Officer or Responsible Officer, as the case may be, thereof has actual
knowledge thereof, in XXXXX-compatible format (to the extent available to such
party in such format).
Section 11.08 Form 15 Filing. On or prior to January 30 of the first
year in which the Trustee is able to do so under applicable law, the Trustee
shall prepare and file a Form 15 Suspension Notification relating to the
automatic suspension of reporting in respect of the Trust under the Exchange
Act. If at the end of any fiscal year for the Trust during which occurred the
filing of a Form 15 Suspension Notification, if the number of Certificateholders
of record exceeds the number set forth in Section 15(d) of the Exchange Act or
the regulations promulgated pursuant thereto which would cause the Trust to
again become subject to the reporting requirements of the Exchange Act, the
Trustee shall recommence preparing and filing reports on Forms 10-K, 10-D and
8-K as required pursuant to Section 11.04, Section 11.05 and Section 11.07;
provided, that if the Trustee re commences the preparing and filing of Exchange
Act reports, it may, as soon as permitted by the Exchange Act, file another Form
15 Suspension Notification.
Section 11.09 Annual Compliance Statements. Each Master Servicer,
the Special Servicer, the Co-Trustee and the Trustee (each, a "Certifying
Servicer") shall deliver to (and each such party shall (i) with respect to each
Additional Servicer engaged by such Master Servicer, Special Servicer,
Co-Trustee or Trustee that is an Initial Sub-Servicer, use commercially
reasonable efforts to cause and (ii) with respect to each other Additional
Servicer with which it has entered into a servicing relationship with respect to
the Mortgage Loans, cause the delivery to) the Depositor and the Trustee on or
before March 15 of each year, commencing in March 2008, an Officer's Certificate
stating, as to the signer thereof, that (A) a review of such Certifying
Servicer's activities during the preceding calendar year or portion thereof and
of such Certifying Servicer's performance under this Agreement, or the
applicable sub servicing agreement or primary servicing agreement in the case of
an Additional Servicer, has been made under such officer's supervision and (B)
to the best of such officer's knowledge, based on such review, such Certifying
Servicer has fulfilled all its obligations under this Agreement, or the
applicable sub servicing agreement or primary servicing agreement in the case of
an Additional Servicer, in all material respects throughout such year or portion
thereof, or, if there has been a failure to fulfill any such obligation in any
material respect, specifying each such failure known to such officer and the
nature and status thereof. Each Master Servicer, the Special Servicer, the
Co-Trustee and the Trustee shall, and each such party shall (i) with respect to
each Additional Servicer engaged by such Master Servicer, Special Servicer,
Co-Trustee or Trustee that is an Initial Sub-Servicer, use commercially
reasonable efforts to cause, and (ii) with respect to each other Additional
Servicer with which it has entered into a servicing relationship with respect to
the Mortgage Loans, cause to forward a copy of each such statement (or, in the
case of the Trustee, make a copy of each such statement available on its
internet website) to the Rating Agencies and the Directing Certificateholder.
Promptly after receipt of each such Officer's Certificate, the Depositor shall
review each such Officer's Certificate and, if applicable, consult with any
Master Servicer, the Special Servicer, the Co-Trustee or the Trustee, as
applicable, as to the nature of any failures by such Master Servicer, the
Special Servicer, the Co-Trustee or Trustee, respectively, or any related
Additional Servicer with which any Master Servicer, the Special Servicer, the
Co-Trustee or the Trustee, as applicable, has engaged in the fulfillment of any
Master Servicer's, the Special Servicer's, the Co-Trustee's, the Trustee's or
Additional Servicer's obligations hereunder or under the applicable
sub-servicing or primary servicing agreement. The obligations of each Master
Servicer, the Special Servicer, the Co-Trustee, the Trustee and each Additional
Servicer under this Section apply to each Master Servicer, the Special Servicer,
the Co-Trustee, the Trustee and each Additional Servicer that serviced a
Mortgage Loan during the applicable period, whether or not each Master Servicer,
the Special Servicer, the Co-Trustee, the Trustee or Additional Servicer is
acting as the Master Servicer, the Special Servicer, the Co-Trustee, the Trustee
or Additional Servicer at the time such Officer's Certificate is required to be
delivered. None of the Master Servicer, Special Servicer, Trustee or Additional
Servicer shall be required to cause the delivery of any such statement until
April 15 in any given year so long as it has received written confirmation from
the Depositor that a report on Form 10-K is not required to be filed in respect
of the Trust for the preceding calendar year. The Co-Trustee shall not be
required to deliver any such statement in any given year so long as it has
received written confirmation from the Depositor that a report on Form 10-K is
not required to be filed in respect of the Trust for the preceding calendar
year.
In the event any Master Servicer, the Special Servicer, the
Co-Trustee or the Trustee is terminated or resigns pursuant to the terms of this
Agreement, such party shall provide, and each Master Servicer and the Special
Servicer shall (i) with respect to an Initial Sub-Servicer engaged by such party
that is an Additional Servicer that resigns or is terminated under any
applicable servicing agreement, use its reasonable efforts to cause and (ii)
such party shall (and with respect to any other Additional Servicer engaged by
such party that resigns or is terminated under any applicable servicing
agreement, cause such Additional Servicer to provide) an annual statement of
compliance pursuant to this Section 11.09 with respect to the period of time
that the applicable Master Servicer, the Special Servicer, the Co-Trustee or the
Trustee was subject to this Agreement or the period of time that such Additional
Servicer was subject to such other servicing agreement.
Section 11.10 Annual Reports on Assessment of Compliance with
Servicing Criteria. (a) On or before March 15 of each year, commencing in March
2008, each Master Servicer, the Special Servicer, the Co-Trustee and the
Trustee, each at its own expense, shall furnish (and each party shall (i) with
respect to each Initial Sub-Servicer engaged by such Master Servicer, Special
Servicer, Co-Trustee and Trustee that is a Servicing Function Participant, use
commercially reasonable efforts to cause and (ii) with respect to each other
Servicing Function Participant with which it has entered into a servicing
relationship with respect to the Mortgage Loans, cause to furnish) engaged by it
to, furnish to the Trustee and the Depositor, with a copy to the Rating
Agencies, a report on an assessment of compliance with the Servicing Criteria
applicable to it that contains (A) a statement by such Reporting Servicer of its
responsibility for assessing compliance with the Applicable Servicing Criteria,
(B) a statement that such Reporting Servicer used the Servicing Criteria to
assess compliance with the Applicable Servicing Criteria, (C) such Reporting
Servicer's assessment of compliance with the Applicable Servicing Criteria as of
and for the period ending the end of the fiscal year covered by the Form 10-K
required to be filed pursuant to Section 11.05, including, if there has been any
material instance of noncompliance with the Applicable 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 Applicable
Servicing Criteria as of and for such period.
Each such report shall be addressed to the Depositor and signed by
an authorized officer of the applicable company, and shall address the
Applicable Servicing Criteria specified on Exhibit W hereto delivered to the
Depositor on the Closing Date. Promptly after receipt of each such report, (i)
the Depositor may review each such report and, if applicable, consult with each
Reporting Servicer as to the nature of any material instance of noncompliance
with the Servicing Criteria applicable to it (and each Servicing Function
Participant engaged or utilized by each Reporting Servicer, as applicable), and
(ii) the Trustee shall confirm that the assessments taken individually address
the Relevant Servicing Criteria for each party as set forth on Exhibit W and
notify the Depositor of any exceptions. None of the Master Servicer, the Special
Servicer, the Trustee or any Servicing Function Participant (other than the
Co-Trustee) shall be required to cause the delivery of any such assessments
until April 15 in any given year so long as it has received written confirmation
from the Depositor that a report on Form 10-K is not required to be filed in
respect of the Trust for the preceding calendar year. The Co-Trustee shall not
be required to cause the delivery of any such assessment in any given year so
long as it has received written confirmation from the Depositor that a report on
Form 10-K is not required to be filed in respect of the Trust for the preceding
calendar year.
(b) Each Master Servicer, the Special Servicer, the Co-Trustee and
the Trustee (and any Servicing Function Participant with which any Master
Servicer, Special Servicer, Co-Trustee or Trustee has entered into a servicing
relationship) hereby acknowledge and agree that the Applicable Servicing
Criteria set forth on Exhibit W is appropriately completed as set forth above
with respect to such party.
(c) No later than the end of each fiscal year for the Trust, each
Master Servicer and the Special Servicer shall notify the Trustee and the
Depositor as to the name of each Additional Servicer engaged by it and each
Servicing Function Participant utilized by it, in each case other than with
respect to any Initial Sub-Servicer, and the Trustee and the Co-Trustee shall
notify the Depositor as to the name of each Servicing Function Participant
utilized by it, and each such notice will specify what specific Servicing
Criteria will be addressed in the report on assessment of compliance prepared by
such Servicing Function Participant. When the Master Servicers, the Special
Servicer and any Additional Servicer submit their assessments to the Trustee,
such parties, as applicable, will also at such time include the assessment (and
related attestation pursuant to Section 11.11) of each Servicing Function
Participant engaged by it and shall indicate to the Trustee what Applicable
Servicing Criteria will be addressed in the report on assessment of compliance
prepared by such Servicing Function Participant.
In the event any Master Servicer, the Special Servicer, the
Co-Trustee or the Trustee is terminated or resigns pursuant to the terms of this
Agreement, such party shall provide, and each such party shall cause any
Servicing Function Participant engaged by it to provide (and each Master
Servicer and the Special Servicer shall (i) with respect to an Initial
Sub-Servicer engaged by such Master Servicer or Special Servicer that is a
Servicing Function Participant that resigns or is terminated under any
applicable servicing agreement, use its reasonable efforts to cause such
Servicing Function Participant and (ii) with respect to any other Servicing
Function Participant that resigns or is terminated under any applicable
servicing agreement, cause such Servicing Function Participant to provide) an
annual assessment of compliance pursuant to this Section 11.10, coupled with an
attestation as required in Section 11.11 in respect to the period of time that
the applicable Master Servicer, the Special Servicer, the Co-Trustee or the
Trustee was subject to this Agreement or the period of time that the Additional
Servicer was subject to such other servicing agreement.
Section 11.11 Annual Independent Public Accountants' Servicing
Report. On or before March 15 of each year, commencing in March 2008, each
Master Servicer, the Special Servicer, the Co-Trustee and the Trustee, each at
its own expense, shall cause (and each Master Servicer, the Special Servicer,
the Co-Trustee and the Trustee shall (i) with respect to each Initial
Sub-Servicer engaged by such Master Servicer, Special Servicer, Co-Trustee or
Trustee that is a Servicing Function Participant use commercially reasonable
efforts to cause and (ii) with respect to each other Servicing Function
Participant with which it has entered into a servicing relationship with respect
to the Mortgage Loans to cause) a registered public accounting firm (which may
also render other services to each Master Servicer, the Special Servicer, the
Trustee, the Co-Trustee or the applicable Servicing Function Participant, as the
case may be) and that is a member of the American Institute of Certified Public
Accountants to furnish a report to the Trustee and the Depositor, with a copy to
the Rating Agencies and the Directing Certificateholder, 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 Applicable 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 assessment of compliance with
the Servicing Criteria was fairly stated in all material respects, or it cannot
express an overall opinion regarding such party's assessment of compliance with
the Relevant Servicing Criteria. In the event that an overall opinion cannot be
expressed, such registered public accounting firm shall state in such report why
it was unable to express such an opinion. Each such related accountant's
attestation report shall be made in accordance with Rules 1-02(a)(3) and 2-02(g)
of Regulation S-X under the Securities Act and the Exchange Act. Such report
must be available for general use and not contain restricted use language.
Promptly after receipt of such report from each Master Servicer, the
Special Servicer, the Co-Trustee, the Trustee or any Servicing Function
Participant, (i) the Depositor shall review the report and, if applicable,
consult with each Master Servicer, the Special Servicer, the Co-Trustee or the
Trustee as to the nature of any defaults by each Master Servicer, the Special
Servicer, the Co-Trustee, the Trustee or any Servicing Function Participant with
which it has entered into a servicing relationship with respect to the Mortgage
Loans, as the case may be, in the fulfillment of any of the Master Servicers',
the Special Servicer's, the Co-Trustee's, the Trustee's or the applicable
Servicing Function Participants' obligations hereunder or under the applicable
sub-servicing or primary servicing agreement, and (ii) the Trustee shall confirm
that each accountants' attestation report submitted pursuant to this Section is
coupled with an assessment of compliance meeting the requirements of Section
11.10 and notify the Depositor of any exceptions. None of the Master Servicers,
the Special Servicer, the Trustee nor any Servicing Function Participant (other
than the Co-Trustee) shall be required to deliver, or to endeavor to cause the
delivery of, such reports until April 15 in any given year so long as it has
received written confirmation from the Depositor that a Form 10-K is not
required to be filed in respect of the Trust for the preceding fiscal year. The
Co-Trustee shall not be required to deliver any such reports in any given year
so long as it has received written confirmation from the Depositor that a report
on Form 10-K is not required to be filed in respect of the Trust for the
preceding calendar year.
Section 11.12 Indemnification. Each of the Master Servicers, the
Special Servicer, the Co-Trustee and the Trustee shall indemnify and hold
harmless each Certification Party from and against any claims, losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments and other costs and expenses incurred by such Certification Party
arising out of (i) an actual breach by the Master Servicers, the Special
Servicer, the Co-Trustee or the Trustee, as the case may be, of its obligations
to the Depositor or the Trustee under this Article XI or (ii) negligence, bad
faith or willful misconduct on the part of the Master Servicers, the Special
Servicer, the Co-Trustee or the Trustee in the performance of such obligations.
Each Master Servicer, the Special Servicer, the Co-Trustee and the
Trustee shall (i) with respect to any Initial Sub-Servicer engaged by such
Master Servicer, Special Servicer, Co-Trustee or Trustee that is a Servicing
Function Participant or Additional Servicer, use commercially reasonable efforts
to cause such party to and (ii) with respect to each other Additional Servicer
and each Servicing Function Participant with which, in each case, it has entered
into a servicing relationship with respect to the Mortgage Loans to cause such
party to indemnify and hold harmless each Certification Party from and against
any and all claims, losses, damages, penalties, fines, forfeitures, legal fees
and expenses and related costs, judgments and any other costs, fees and expenses
incurred by such Certification Party arising out of (i) a breach of its
obligations to the Depositor or the Trustee to provide any of the annual
compliance statements or annual assessment of compliance reports or attestation
reports pursuant to this Agreement, the applicable sub-servicing or primary
servicing agreement or (ii) negligence, bad faith or willful misconduct its part
in the performance of such obligations or (iii) any failure by a Servicer (as
defined in Section 11.02(b)) to identify a Servicing Function Participant
pursuant to Section 11.02(c).
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Party, then each Master
Servicer, the Special Servicer, the Co-Trustee, the Trustee, the Additional
Servicer or other Servicing Function Participant (the "Performing Party") shall
contribute to the amount paid or payable to the Certification Party as a result
of the losses, claims, damages or liabilities of the Certification Party in such
proportion as is appropriate to reflect the relative fault of the Certification
Party on the one hand and the Performing Party on the other in connection with a
breach of the Performing Party's obligations pursuant to this Article XI (or
breach of its obligations under the applicable sub-servicing or primary
servicing agreement to provide any of the annual compliance statements or annual
servicing criteria compliance reports or attestation reports) or the Performing
party's negligence, bad faith or willful misconduct in connection therewith.
Each Master Servicer, the Special Servicer, the Co-Trustee and the Trustee shall
(i) with respect to any Initial Sub-Servicer engaged by such Master Servicer,
Special Servicer, Co-Trustee or Trustee that is a Servicing Function Participant
or Additional Servicer, use commercially reasonable efforts to cause such party
to and (ii) with respect to each other Additional Servicer or Servicing Function
Participant, in each case, with which it has entered into a servicing
relationship with respect to the Mortgage Loans cause such party to agree to the
foregoing indemnification and contribution obligations. This Section 11.12 shall
survive the termination of this Agreement or the earlier resignation or removal
of any Master Servicer or the Special Servicer.
Section 11.13 Amendments. This Article XI may be amended by the
parties hereto with their written consent pursuant to Section 12.01 for purposes
of complying with Regulation AB and/or to conform to standards developed within
the commercial mortgage-backed securities market and the Xxxxxxxx-Xxxxx Act or
for purposes of designating the Certifying Person without, in each case, any
Opinions of Counsel, Officer's Certificates, Rating Agency confirmation with
respect to the Certificates or the Companion Loan Securities or the consent of
any Certificateholder, notwithstanding anything to the contrary contained in
this Agreement; provided that the reports and certificates required to be
prepared pursuant to Sections 11.09, 11.10 and 11.11 shall not be eliminated
without Rating Agency confirmation with respect to the Certificates or the
Companion Loan Securities.
Section 11.14 Regulation AB Notices. Any notice required to be
delivered by the the Trustee to the Depositor pursuant to this Article XI may be
delivered via email (and additionally delivered via phone or telecopy),
notwithstanding the provisions of Section 12.05, to X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Xxxxx, telecopy number: (000) 000-0000, telephone number: (000) 000-0000
and email: Xxxxxx.x.xxxxx@xxxxxxxx.xxx, with a copy to Xxxxxx Xxxxx, Managing
Director and Associate General Counsel, JPMorgan Chase & Co., 000 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (000) 000-0000, telephone
number: (000) 000-0000 and email: Xxxxx_xxxxxx@xxxxxxxx.xxx.
Section 11.15 Certain Matters Relating to the Future Securitization
of the Serviced Pari Passu Companion Loans.
(a) Each of the Trustee, the Co-Trustee, each Master Servicer and
the Special Servicer shall, and each Master Servicer and the Special Servicer
shall use commercially reasonable efforts to cause any sub-servicer appointed
with respect to any Serviced Pari Passu Companion Loan to, upon request or
notice from a Mortgage Loan Seller (or a permitted transferee of such Mortgage
Loan Seller pursuant to the related Intercreditor Agreement), cooperate with the
Mortgage Loan Seller (or such permitted transferee) selling any Serviced Pari
Passu Companion Loan into a securitization that is required to comply with
Regulation AB (a "Regulation AB Companion Loan Securitization") and, to the
extent needed in order to comply with Regulation AB, provide to the Mortgage
Loan Seller (or such permitted transferee) information about itself that such
Mortgage Loan Seller reasonably requires to meet the requirements of Items 1117
and 1119 and paragraphs (b), (c)(3), (c)(4) and (c)(5) of Item 1108 of
Regulation AB and shall cooperate with such Mortgage Loan Seller to provide such
other information as may be necessary to comply with the requirements of
Regulation AB. Each of the Trustee, the Co-Trustee, the applicable Master
Servicer and the Special Servicer understands that such information may be
included in the offering material related to a Regulation AB Companion Loan
Securitization and agrees to negotiate in good faith an agreement (subject to
the final sentence of this sub-section) to indemnify and hold the related
depositor and underwriters involved in the offering of the related Certificates
harmless for any costs, liabilities, fees and expenses incurred by the depositor
or such underwriters as a result of any material misstatements or omissions or
alleged material misstatements or omissions in any such offering material to the
extent that such material misstatement or omission was made in reliance upon any
such information provided by the CoTrustee (where such information pertains to
LaSalle Bank National Association individually and not to any specific aspect of
the Co-Trustee's duties or obligations under this Agreement), the Trustee (where
such information pertains to Xxxxx Fargo Bank, N.A. individually and not to any
specific aspect of the Trustee's duties or obligations under this Agreement),
such Master Servicer (where such information pertains to Midland Loan Services,
Inc. or Wachovia Bank, National Association, as applicable, individually and not
to any specific aspect of such Master Servicer's duties or obligations under
this Agreement) and the Special Servicer (where such information pertains to
X.X. Xxxxxx Company, Inc. individually and not to any specific aspect of the
Special Servicer's duties or obligations under this Agreement), as applicable,
to such depositor, underwriters or Mortgage Loan Seller (or permitted
transferee) as required by this clause (a). Notwithstanding the foregoing, to
the extent that the information provided by the Trustee, the Co-Trustee, a
Master Servicer or the Special Servicer, as applicable, for inclusion in the
offering materials related to such Regulation AB Companion Loan Securitization
is substantially and materially similar to the information provided by such
party with respect to the offering materials related to this transaction,
subject to any required changes due to any amendments to Regulation AB or any
changes in the interpretation of Regulation AB, such party shall be deemed to be
in compliance with this Section 11.15(a). Any indemnification agreement executed
by the Trustee, the Co-Trustee, a Master Servicer or Special Servicer in
connection with the Regulation AB Companion Loan Securitization shall be
substantially similar to the related indemnification agreement executed in
connection with this Agreement. It shall be a condition precedent to any party's
obligations otherwise set forth above that the applicable Mortgage Loan Seller
(or permitted transferee) shall have (a) provided reasonable advance notice of
the exercise of its rights hereunder and (b) paid, or entered into reasonable
agreement to cause to be paid, the reasonable out-of-pocket expenses (including
reasonable fees and expenses of counsel) incurred by such party in reviewing
and/or causing the delivery of any disclosure, opinion of counsel or
indemnification agreement.
(b) Each of the Trustee, the Co-Trustee, each Master Servicer and
the Special Servicer shall, and each Master Servicer and the Special Servicer
shall use commercially reasonable efforts to cause any sub-servicer appointed
with respect to a Serviced Securitized Companion Loan to, upon request or notice
from such parties (which request or notice may be given once at the closing of
such Regulation AB Companion Loan Securitization instead of each time a filing
is required), cooperate with the trustee, master servicer or special servicer
for any Regulation AB Companion Loan Securitization in preparing each Form 10-D
required to be filed by such Regulation AB Companion Loan Securitization (until
January 30 of the first year in which the trustee for such Regulation AB
Companion Loan Securitization files a Form 15 Suspension Notice with respect to
the related trust) and shall provide to such trustee or master servicer within
the time period set forth in the Other Pooling and Servicing Agreement (so long
as such time period is no earlier than the time periods set forth herein) for
such Regulation AB Companion Loan Securitization such information relating to a
Serviced Securitized Companion Loan as may be necessary for the servicer and
trustee of the Regulation AB Companion Loan Securitization to comply with the
reporting requirements of Regulation AB; provided, however, that any parties to
any Regulation AB Companion Loan Securitization shall consult with the Trustee,
the Co-Trustee, each Master Servicer and the Special Servicer (and Master
Servicer shall consult with the Primary Servicer and any sub-servicer appointed
with respect to the related Serviced Whole Loan), and the Trustee, the
Co-Trustee, such Master Servicer and the Special Servicer shall cooperate with
such parties in respect of establishing the time periods for preparation of the
Form 10-D reports in the documentation for such Regulation AB Companion Loan
Securitization. Notwithstanding the foregoing, to the extent the Trustee, the
Co-Trustee, a Master Servicer or the Special Servicer, as the case may be,
complies in all material respects with the timing, reporting and attestation
requirements imposed on such party in Article XI of this Agreement (other than
this Section 11.15) with respect to the comparable timing, reporting and
attestation requirements contemplated in this section 11.15(b) with respect to
such Regulation AB Companion Loan Securitization, such party shall be deemed to
be in compliance with the provisions of this Section 11.15(b).
(c) Each of the Trustee, the Co-Trustee, each Master Servicer and
the Special Servicer shall, and each Master Servicer and the Special Servicer
shall use commercially reasonable efforts to cause any sub-servicer appointed
with respect to a Serviced Securitized Companion Loan to, upon request from such
trustee (which request or notice may be given once at the closing of such
Regulation AB Companion Loan Securitization instead of each time a filing is
required), provide the trustee under a Regulation AB Companion Loan
Securitization (until January 30 of the first year in which the trustee for such
Regulation AB Companion Loan Securitization files a Form 15 Suspension Notice
with respect to the related trust) information with respect to any event that is
required to be disclosed under Form 8-K with respect to a Serviced Securitized
Companion Loan within two Business Days after the occurrence of such event of
which it has knowledge. Notwithstanding the foregoing, to the extent the
Trustee, the Co-Trustee, a Master Servicer or the Special Servicer, as the case
may be, complies in all material respects with the timing, reporting and
attestation requirements imposed on such party in Article XI of this Agreement
(other than this Section 11.15) with respect to the comparable timing, reporting
and attestation requirements imposed on such party contemplated in this section
11.15(c) with respect to such Regulation AB Companion Loan Securitization, such
party shall be deemed to be in compliance with the provisions of this Section
11.15(c).
(d) On or before March 15 of each year (or March 14 if a leap year)
during which a Regulation AB Companion Loan Securitization is required to file
an annual report on Form 10-K (and not in respect of any year in which such
Regulation AB Companion Loan Securitization is not required to file an annual
report on Form 10-K because a Form 15 Suspension Notice with respect to the
related trust was filed), each of the Trustee, the applicable Master Servicer
and the Special Servicer shall, and such Master Servicer and the Special
Servicer shall use commercially reasonable efforts to cause any sub-servicer
appointed with respect to a Serviced Securitized Companion Loan to, upon request
from such trustee (which request or notice may be given once at the closing of
such Regulation AB Companion Loan Securitization instead of each time a filing
is required), provide, with respect to itself, to the trustee under such
Regulation AB Companion Loan Securitization, to the extent required pursuant to
Item 1122 of Regulation AB, (i) a report on an assessment of compliance with the
servicing criteria to the extent required pursuant to Item 1122(a) of Regulation
AB, (ii) a registered accounting firm's attestation report on such Person's
assessment of compliance with the applicable servicing criteria to the extent
required pursuant to Item 1122(b) of Regulation AB and (iii) such other
information as may be required pursuant to Item 1122(c) of Regulation AB.
Notwithstanding the foregoing, to the extent the Trustee, the Co-Trustee, a
Master Servicer or the Special Servicer, as the case may be, complies in all
material respects with the timing, reporting and attestation requirements
imposed on such party in Article XI of this Agreement (other than this Section
11.15) with respect to the comparable timing, reporting and attestation
requirements contemplated in this section 11.15(d) with respect to such
Regulation AB Companion Loan Securitization, such party shall be deemed to be in
compliance with the provisions of this Section 11.15(d).
(e) On or before March 15 of each year (or March 14 if a leap year)
during which a Regulation AB Companion Loan Securitization is required to file
an annual report on Form 10-K (and not in respect of any year in which such
Regulation AB Companion Loan Securitization is not required to file an annual
report on Form 10-K because a Form 15 Suspension Notice with respect to the
related trust was filed), each of the Trustee, the Co-Trustee, the applicable
Master Servicer and the Special Servicer shall, and the applicable Master
Servicer and the Special Servicer shall use reasonable efforts to cause any
sub-servicer appointed with respect to a Serviced Securitized Companion Loan to,
to the extent required pursuant to Item 1123 of Regulation AB, deliver, with
respect to itself, to the trustee, upon request from such trustee (which request
or notice may be given once at the closing of such Regulation AB Companion Loan
Securitization instead of each time a filing is required), under such Regulation
AB Companion Loan Securitization a servicer compliance statement signed by an
authorized officer of such Person that satisfies the requirements of Item 1123
of Regulation AB. Notwithstanding the foregoing, to the extent the Trustee, the
Co-Trustee, a Master Servicer or the Special Servicer, as the case may be,
complies in all material respects with the timing, reporting and attestation
requirements imposed on it in Article XI of this Agreement (other than this
Section 11.15) with respect to the comparable timing, reporting and attestation
requirements contemplated in this section 11.15(e) with respect to such
Regulation AB Companion Loan Securitization, such party shall be deemed to be in
compliance with the provisions of this Section 11.15(e).
(f) Each of the Trustee, the Co-Trustee, the applicable Master
Servicer and the Special Servicer shall use commercially reasonable efforts to
cause a sub-servicer to agree (severally but not jointly) to indemnify (such
indemnity limited to each such parties respective failure described below) and
hold the related Mortgage Loan Seller (or permitted transferee), depositor,
trustee or master servicer under a Regulation AB Companion Loan Securitization
harmless for any costs, liabilities, fees and expenses incurred by such Mortgage
Loan Seller, depositor, trustee or master servicer as a result of any failure by
the Trustee, the Co-Trustee, the Master Servicer and the Special Servicer, as
applicable, to comply with the reporting requirements to the extent applicable
set forth under Sections 11.15(b), (c), (d) or (e) above.
Any subservicing agreement related to a Serviced Securitized
Companion Loan shall contain a provision requiring the related Sub-Servicer to
provide to the applicable Master Servicer or Special Servicer, as applicable,
information, reports and certificates with respect to itself comparable to any
information, reports or certificates required to be provided by the applicable
Master Servicer or Special Servicer pursuant to this Section 11.15, even if such
Sub-Servicer is not otherwise required to provide such information, reports or
certificates to any Person in order to comply with Regulation AB. Such
information, reports or certificates shall be provided to the applicable Master
Servicer or Special Servicer, as applicable, no later than two Business Days
prior to the date on which such Master Servicer or Special Servicer, as
applicable, is required to deliver its comparable information, reports or
certificates pursuant to this Section 11.15.
Each party hereto shall be entitled to rely on the information in
the Prospectus Supplement with respect to the identity of any Sponsor, credit
enhancer, derivative provider or "significant obligor" as of the Closing Date
other than with respect to itself or any information required to be provided by
it or indemnified for by it pursuant to any separate agreement.
[End of Article XI]
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment. (a) This Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders or the Companion Holders:
(i) to cure any ambiguity to the extent that it does not materially
and adversely affect any Certificateholder or Companion Holder;
(ii) to cause the provisions in this Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus
with respect to the Certificates, the Trust or this Agreement or to
correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of
any Certificateholder or Companion Holder;
(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust
Fund or either of the Lower-Tier REMIC, the Middle-Tier REMIC or the
Upper-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at
all times that any Certificate is outstanding or to avoid or minimize the
risk of the imposition of any tax on the Trust Fund or any of the
Lower-Tier REMIC, the Middle-Tier REMIC or the Upper-Tier REMIC pursuant
to the Code that would be a claim against the Trust Fund or any of the
Lower-Tier REMIC, the Middle-Tier REMIC or the Upper-Tier REMIC, provided
that the Trustee has received an Opinion of Counsel (at the expense of the
party requesting such amendment) to the effect that (a) such action is
necessary or desirable to maintain such qualification or to avoid or
minimize the risk of the imposition of any such tax and (b) such action
will not adversely affect in any material respect the interests of any
Certificateholder or any Companion Holder;
(iv) to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided
that (a) the P&I Advance Date shall in no event be later than the Business
Day prior to related Distribution Date, (b) such change shall not, as
evidenced by an Opinion of Counsel (at the expense of the party requesting
such amendment or at the expense of the Trust Fund if the requesting party
is the Trustee or the Co-Trustee), adversely affect in any material
respect the interests of any Certificateholder or any Companion Holder and
(c) such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of
Certificates or class of Companion Loan Securities as evidenced by a
letter from each Rating Agency to such effect;
(v) to modify, eliminate or add to the provisions of Section 5.02(c)
or any other provision hereof restricting transfer of the Residual
Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the Middle-Tier
REMIC, the Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person;
(vi) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such
action shall not, (x) as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto or (y) result in the downgrade,
withdrawal or qualification of the then-current rating assigned to any
Class of Certificates or class of Companion Loan Securities, as evidenced
by a letter from each Rating Agency and, in the case of a Serviced
Securitized Companion Loan, a Rating Agency rating any class of related
Companion Loan Securities, to such effect;
(vii) to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, and, in the case of any Serviced
Securitized Companion Loan, a Rating Agency rating any class of related
Companion Loan Securities to such effect, provided that such change shall
not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates or class of
Companion Loan Securities, as evidenced by a letter from each Rating
Agency to such effect; and
(viii) to modify the provisions of Sections 3.05 and 3.19 (with
respect to reimbursement of Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts) if (a) the Depositor, the Master Servicers, the
Special Servicer, the Trustee, the Co-Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to
such industry standard, (b) such modification does not adversely affect
the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or of the Grantor Trust as a grantor trust,
as evidenced by an Opinion of Counsel and (c) each Rating Agency has
delivered written confirmation that such modification would not result in
the downgrade, withdrawal or qualification of any of the then current
ratings of any Class of Certificates or class of Companion Loan
Securities.
provided that no such amendment (A) changes in any manner the obligations of any
Mortgage Loan Seller under a Mortgage Loan Purchase Agreement without the
consent of such Mortgage Loan Seller or (B) materially and adversely affects the
holders of a Companion Loan without such Companion Holder's consent; and
provided, further, that such amendment shall not significantly change the
activities of the Trust (insofar as such change would adversely affect the
status of the Trust as a "qualifying special purpose entity" under FASB 140).
(b) This Agreement may also be amended from time to time by the
parties hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 66(2)/3% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller;
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency together with the consent of the Companion
Holders (to the extent such consent is required under the related
Intercreditor Agreement), amend the Servicing Standards; or
(vi) significantly change the activities of the Trust (insofar as
such changes would adversely affect the status of the Trust as a
"qualifying special purpose entity" under FASB 140) without the consent of
the Holders of Certificates entitled to not less than 51% of all the
Voting Rights (without regard to Certificates held by the Depositor, any
Mortgage Loan Seller or any Affiliates and/or agents of the Depositor or
any Mortgage Loan Seller) and the consent of the Directing
Certificateholder.
(c) Notwithstanding the foregoing, none of the Trustee, the
Co-Trustee, the Depositor, the Master Servicers nor the Special Servicer will be
required to consent to any amendment hereto without having first received an
Opinion of Counsel (at the Trust Fund's expense) to the effect that such
amendment is permitted hereunder and that such amendment or the exercise of any
power granted to the Master Servicers, the Depositor, the Special Servicer, the
Trustee, the Co-Trustee or any other specified person in accordance with such
amendment will not result in the imposition of a tax on any portion of the Trust
Fund, the Lower-Tier REMIC, the Middle-Tier REMIC, the Upper-Tier REMIC or the
Grantor Trust or cause the Lower-Tier REMIC, the Middle-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC or cause the Grantor Trust to
fail to qualify as a grantor trust.
(d) Promptly after the execution of any such amendment, the Trustee
shall furnish a statement describing the amendment to each Certificateholder and
each Companion Holder with respect to a Serviced Whole Loan and the Trustee and
shall furnish a copy of such amendment to each Rating Agency and any Rating
Agency rating any Companion Loan Securities.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 12.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
(f) The Trustee shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 12.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if any Master Servicer or the Trustee requests any
amendment of this Agreement in furtherance of the rights and interests of
Certificateholders, the cost of any Opinion of Counsel required in connection
therewith pursuant to Section 12.01(a) or (c) shall be payable out of the
Certificate Account.
(h) The Servicing Standards shall not be amended unless each Rating
Agency provides a written confirmation that such amendment would not cause a
downgrading, qualification or withdrawal of the then current ratings assigned to
any of the Certificates or any class of Companion Loan Securities.
(i) Notwithstanding any contrary provisions of this Agreement, this
Agreement may not be amended in a manner that would adversely affect the
distributions to the Swap Counterparty or the Class A-2SFL Certificates or the
Class A-JFL Certificates or the rights of the Swap Counterparty under either
Swap Contract or the rights of the holders of the Class A-2SFL Certificates or
the Class A-JFL Certificates without the consent of the Swap Counterparty and
66?% of the Holders of the Class A-2SFL Certificates and the Class A-JFL
Certificates, respectively. The Trustee shall forward any proposed amendment to
this Agreement to the Swap Counterparty.
(j) Notwithstanding any other provision of this Agreement (other
than the next succeeding sentence), for purposes of the giving or withholding of
consents pursuant to this Section 12.01, Certificates registered in the name of
the Depositor or any Affiliate of the Depositor shall be entitled to the same
Voting Rights with respect to matters described above as they would if any other
Person held such Certificates, so long as neither the Depositor nor any of its
Affiliates is performing servicing duties with respect to any of the Mortgage
Loans. Any amendment contemplated by this Section 12.01 that adversely affects
the status of the Trust Fund as a "qualifying special purpose entity" under FASB
140 shall require consent of the Holders of Certificates entitled to at least
51% of the Voting Rights (without regard to Certificates held by the Depositor,
any Affiliate and/or agents of the Depositor, any Mortgage Loan Seller or any
Affiliate and/or agents of any Mortgage Loan Seller) and the consent of the
Directing Certificateholder.
Section 12.02 Recordation of Agreement; Counterparts. (a) To the
extent permitted by applicable law, this Agreement is subject to recordation in
all appropriate public offices for real property records in all the counties or
other comparable jurisdictions in which any or all of the properties subject to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Trustee at the expense of
the Depositor on direction by the Special Servicer and with the consent of the
Depositor (which may not be unreasonably withheld), but only upon direction
accompanied by an Opinion of Counsel (the cost of which shall be paid by the
Depositor) to the effect that such recordation materially and beneficially
affects the interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
(c) The Trustee shall make any filings required under the laws of
the state of its place of business required solely by virtue of the fact of the
location of the Trustee's place of business, the costs of which, if any, to be
at the Trustee's expense.
Section 12.03 Limitation on Rights of Certificateholders. (a) The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as herein before provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates of any Class evidencing not less than
25% of the related Percentage Interests in such Class shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding. The Trustee shall be under no
obligation to exercise any of the trusts or powers vested in it hereunder or to
institute, conduct or defend any litigation hereunder or in relation hereto at
the request, order or direction of any of the Holders of Certificates unless
such Holders have offered to the Trustee reasonable security against the costs,
expenses and liabilities which may be incurred therein or hereby. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section 11.03(c), each and every Certificateholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 12.04 Governing Law. This Agreement and the Certificates
shall be construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in said State, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Section 12.05 Notices. Any communications provided for or permitted
hereunder shall be in writing and, unless otherwise expressly provided herein,
shall be deemed to have been duly given if personally delivered at or couriered,
sent by facsimile transmission or mailed by registered mail, postage prepaid
(except for notices to the Trustee and the Co-Trustee which shall be deemed to
have been duly given only when received), to: (i) in the case of the Depositor,
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx, Vice President,
telecopy number: (000) 000-0000; (ii) (a) in the case of Master Servicer No. 1,
Midland Loan Services, Inc., 00000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx,
Xxxxxx 00000, Attention: President; telecopy number: (000) 000-0000; (b) in the
case of Master Servicer No. 2, Wachovia Bank, National Association, NC 1075,
0000 Xxxxxxxx Xxxxx XXX0, Xxxxxxxxx, XX 00000-0000 (for overnight mail only),
28262-1075 (for regular mail), Attention: Portfolio Management Group Re: X.X.
Xxxxxx Chase Commercial Mortgage Securities Corp., Series 2007-LDP10, telecopy
number: (000) 000-0000; (iii) in the case of the Special Servicer, X.X. Xxxxxx
Company, Inc., 00000 X. Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000,
Attention: Xxxx Xxxxxxxxxxx, fax number: (000) 000-0000, with a copy to X.X.
Xxxxxx Company, Inc., 0000 Xxxxxx Xxxxxxxxx, Xxxxx 0000, XxXxxx, Xxxxxxxx 00000,
Attention Xxxxx Xxxxxxx, fax number (000) 000-0000; (iv) in the case of the
Trustee, Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000-0000, and with respect to Certificate Transfers, Xxxxx Xxxxxx xxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000; (v) in the case of the
Rating Agencies, (a) Fitch, Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Commercial Mortgage Backed Securities Group, fax number: (212) 635
0295 and (b) Xxxxx'x Investors Services, Inc., 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Commercial Mortgage Surveillance Group, fax
number: (000) 000-0000; (vi) in the case of the Mortgage Loan Sellers, (a) AIG
Mortgage Capital, LLC, 0 XxxXxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
00000, Attention: Xxxx Xxxxxxxxxxx, fax number: (000) 000-0000, (b) Eurohypo AG,
New York Branch, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxxx, fax number: (000) 000-0000, (c) JPMorgan Chase Bank,
N.A., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx: Xxxxxx Xxxxx, Vice President,
telecopy number: (000) 000-0000, (d) Nomura Credit & Capital, Inc., 2 World
Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: N. Xxxxx
XxXxxxx, fax number: (000) 000-0000, (e) PNC Bank, National Association, 00000
Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000 (for deliveries or courier), and
X.X. Xxx 00000, Xxxxxxx Xxxxxxx, Xxxxxx 00000-0000 (for United States mail),
Attention: Xxxxx Xxxx, fax number: (000) 000-0000, with a copy to it at One PNC
Plaza, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention:
Xxxxxxxx Xxxxxx Xxxxx, fax number: (000) 000-0000 and (f) UBS Real Estate
Securities Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx Xxxxx, fax number: (000) 000-0000 and Attention: Xxxxxxx X.
Xxxxxx, fax number: (000) 000-0000; (vii) in the case of the initial Directing
Certificateholder, JER Investor Trust Inc. 0000 Xxxxxx Xxxxxxxxx, Xxxxx 0000,
XxXxxx, Xxxxxxxx 00000, Attention Xxxxx X. Xxxxxxx, fax number (000) 000-0000,
with a copy to X.X. Xxxxxx Company, Inc., 00000 X. Xxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000, Attention: Xxxx Xxxxxxxxxxx, fax number: (000) 000-0000;
and (viii) in the case of the Co-Trustee, LaSalle Bank National Association, 000
Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxx 00000, Attention: Global
Securities and Trust Services, X.X. Xxxxxx 2007-LDP10. Any communication
required or permitted to be delivered to a Certificateholder shall be deemed to
have been duly given when mailed first class, postage prepaid, to the address of
such Holder as shown in the Certificate Register. Any notice so mailed within
the time prescribed in this Agreement shall be conclusively presumed to have
been duly given, whether or not the Certificateholder receives such notice.
Section 12.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 12.07 Grant of a Security Interest. The Depositor intends
that the conveyance of the Depositor's right, title and interest in and to the
Mortgage Loans pursuant to this Agreement shall constitute a sale and not a
pledge of security for a loan. If such conveyance is deemed to be a pledge of
security for a loan, however, the Depositor intends that the rights and
obligations of the parties to such loan shall be established pursuant to the
terms of this Agreement. The Depositor also intends and agrees that, in such
event, (i) the Depositor shall be deemed to have granted to the Trustee (in such
capacity) a first priority security interest in the Depositor's entire right,
title and interest in and to the assets comprising the Trust Fund, including
without limitation, the Mortgage Loans, all principal and interest received or
receivable with respect to the Mortgage Loans (other than principal and interest
payments due and payable prior to the Cut-off Date and Principal Prepayments
received prior to the Cut-off Date), all amounts held from time to time in the
Certificate Accounts, the Distribution Accounts, the Gain-on-Sale Reserve
Account, the Interest Reserve Account and, if established, the REO Account, and
all reinvestment earnings on such amounts, and all of the Depositor's right,
title and interest in and to the proceeds of any title, hazard or other
Insurance Policies related to such Mortgage Loans and (ii) this Agreement shall
constitute a security agreement under applicable law. This Section 11.07 shall
constitute notice to the Trustee pursuant to any of the requirements of the
applicable UCC.
Section 12.08 Successors and Assigns; Third Party Beneficiaries. (a)
The provisions of this Agreement shall be binding upon and inure to the benefit
of the respective successors and assigns of the parties hereto, and all such
provisions shall inure to the benefit of the Certificateholders. The Swap
Counterparty and each Mortgage Loan Seller and the Companion Holders (and their
agents and permitted successors and assigns, including any trustee or servicer
with respect to any Serviced Securitized Companion Loan or any other Companion
Loan) are intended third-party beneficiaries in respect of the respective rights
afforded them hereunder. No other person, including, without limitation, any
Mortgagor, shall be entitled to any benefit or equitable right, remedy or claim
under this Agreement.
(b) Each of the BACM 2007-1 Trustee, BACM 2007-1 Master Servicer and
BACM 2007-1 Special Servicer in respect to the Skyline Portfolio A1 Pari Passu
Companion Loan and the Solana Pari Passu Companion Loan shall be a third-party
beneficiary to this Agreement with respect to its rights as specifically
provided for herein and under the Skyline Portfolio Intercreditor Agreement or
the Solana Intercreditor Agreement, as applicable.
Section 12.09 Article and Section Headings. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 12.10 Notices to the Rating Agencies. (a) The Trustee shall
use reasonable efforts promptly to provide notice to each Rating Agency and the
Swap Counterparty (and any Rating Agency for any class of securities backed
wholly or partially by any Companion Loan to the extent applicable to the
Serviced Whole Loans) with respect to each of the following of which it has
actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Trustee, any Master
Servicer or the Special Servicer; and
(iv) the repurchase or substitution of Mortgage Loans by a Mortgage
Loan Seller pursuant to Section 6 of the related Mortgage Loan Purchase
Agreement.
(b) Each Master Servicer shall use reasonable efforts promptly to
provide notice to each Rating Agency with respect to each of the following of
which it has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of any Certificate Accounts;
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee;
(iv) any change in the lien priority of any Mortgage Loan with
respect to an assumption of the Mortgage Loan or additional encumbrance
described in Section 3.08;
(v) any additional lease to an anchor tenant or termination of any
existing lease to an anchor tenant at retail properties for any Mortgage
Loan with a Stated Principal Balance that is equal to or greater than the
lesser of (1) an amount greater than 5% of the then aggregate outstanding
principal balances of the Mortgage Loans or (2) $35,000,000;
(vi) any material damage to any Mortgaged Property;
(vii) any assumption with respect to a Mortgage Loan; and
(viii) any release or substitution of any Mortgaged Property.
(c) Upon written request, each of the Master Servicers and the
Special Servicer shall promptly furnish to each Rating Agency (and any Rating
Agency for any class of securities backed wholly or partially by any Companion
Loan to the extent applicable to the Serviced Whole Loans) copies of inspection
reports and other items delivered to each of the Master Servicers and Special
Servicer pursuant to Sections 3.12(a) and 3.12(b).
(d) The Trustee shall promptly furnish notice to the Rating Agencies
of (i) any change in the location of the Distribution Accounts and (ii) the
final payment to any Class of Certificateholders.
(e) The Trustee, the Co-Trustee, each Master Servicer and the
Special Servicer, as applicable, shall furnish to each Rating Agency (and any
Rating Agency for any class of securities backed wholly or partially by any
Companion Loan to the extent applicable to the Serviced Whole Loans) with
respect to each Mortgage Loan such information as the Rating Agency shall
reasonably request and which the Trustee, the Co-Trustee, such Master Servicer
or Special Servicer, can reasonably provide in accordance with applicable law
and without waiving any attorney-client privilege relating to such information
or violating the terms of this Agreement or any Mortgage Loan documents. The
Trustee, the Co-Trustee, each Master Servicer and Special Servicer, as
applicable, may include any reasonable disclaimer it deems appropriate with
respect to such information. Notwithstanding anything to the contrary herein,
nothing in this Section 12.10 shall require a party to provide duplicative
notices or copies to the Rating Agencies with respect to any of the above listed
items.
[End of Article XII]
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP., Depositor
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
Title: Executive Director
MIDLAND LOAN SERVICES, INC.,
Master Servicer No. 1
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
Master Servicer No. 2
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
X.X. XXXXXX COMPANY, INC., Special
Servicer
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
XXXXX FARGO BANK, N.A.,
Trustee
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION
Co-Trustee
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 27 day of March 2007, before me, a notary public in and for
said State, personally appeared Xxxxxx Xxxxx known to me to be a an Executive
Director of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of such corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------------
Notary Public
[SEAL]
My commission expires:
Xxxxxxxx X. Xxxxxxxx
Notary Public, State of New York
No. 02LO609547
Qualified in New York County
Commission Expires 02/04/2010
_______________________________________
STATE OF KANSAS )
) ss.:
COUNTY OF XXXXXXX )
On the 27th day of March 2007, before me, a notary public in and for
said State, personally appeared Xxxxxxxx X. Xxxxxx known to me to be a Senior
Vice President of Midland Loan Services, Inc., that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxx
--------------------------------------
Notary Public
XXXXX XXXX
NOTARY PUBLIC - State of Kansas
My Appt. Exp. 06/11/10
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBERG )
On the 26 day of March 2007, before me, a notary public in and for
said State, personally appeared Xxxxx Xxxxxxxx known to me to be a Vice
President of Wachovia Bank, National Association, that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such national banking association, and acknowledged to me that such national
banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxx
--------------------------------------
Notary Public
[SEAL] XXXXX XXXXXX
NOTARY PUBLIC
My commission expires: XXXXXX COUNTY, N.C.
My Commission Expires March 27, 2010
3-27-2010
---------------------------------
STATE OF VIRGINIA )
) ss.:
COUNTY OF FAIRFAX )
On the 26th day of March 2007, before me, a notary public in and for
said State, personally appeared Xxxxx X. Xxxxxxx known to me to be a Managing
Director of X.X. Xxxxxx Company, Inc., that executed the within instrument, and
also known to me to be the person who executed it on behalf of such corporation,
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx Xxxxxx
--------------------------------------
Notary Public
[SEAL] Enclosed Herein Is My
Commonwealth of Virginia Notary Public Seal
My commission expires: My Commission Expires November 30, 2008
XXXXXX XXXXXX
Nov. 30, 0000
---------------------------------
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 29th day of March 2007, before me, a notary public in and for
said State, personally appeared Xxxx Xxxxxxx known to me to be a an Vice
President of Xxxxx Fargo Bank, N.A., that executed the wtithin instrument, and
also known to me to be the person who executed it on behalf of such corporation,
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxxxx
--------------------------------------
Notary Public
[SEAL]
My commission expires:
XXXXX X. XXXXXX
Notary Public, State of New York
No. 01J06121000
Qualified in Kings County
Commission Expires Jan. 3, 2009
_______________________________________
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On the 29th day of March 2007, before me, a notary public in and for
said State, personally appeared Xxxxxxxx X. Xxxxx known to me to be an Assistant
Vice President of LaSalle Bank National Association, that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such national banking association, and acknowledged to me that such national
banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxx Xxxxxxx
--------------------------------------
Notary Public
[SEAL] "OFFICIAL SEAL"
XXXX XXXXXXX
My commission expires: NOTARY PUBLIC STATE OF ILLINOIS
My Commission Expires 08/09/2009
8/9/2009
---------------------------------
EXHIBIT A-1
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS A-1
THIS CLASS A-1 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.1220% MASTER SERVICERS: MIDLAND LOAN
SERVICES, INC. AND WACHOVIA BANK,
DENOMINATION: $41,831,000 NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: X.X. XXXXXX
AGREEMENT: AS OF MARCH 1, 2007 COMPANY, INC.
CUT-OFF DATE: AS SET FORTH IN THE TRUSTEE: XXXXX FARGO BANK, N.A.
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) CO-TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
CUSIP NO.: 46630J AA7
FIRST DISTRIBUTION DATE:
APRIL 16, 2007 ISIN NO.: US46630JAA79
APPROXIMATE AGGREGATE COMMON CODE NO.: 029465355
CERTIFICATE BALANCE
OF THE CLASS A-1 CERTIFICATES CERTIFICATE NO.: A-1-[--]
AS OF THE CLOSING DATE: $41,831,000
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Co-Trustee, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-1 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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-2
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS A-1S
THIS CLASS A-1S CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 4.9300% MASTER SERVICERS: MIDLAND LOAN
SERVICES, INC. AND WACHOVIA BANK,
DENOMINATION: $200,000,000 NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: X.X. XXXXXX COMPANY,
AGREEMENT: AS OF MARCH 1, 2007 INC.
CUT-OFF DATE: AS SET FORTH IN THE TRUSTEE: XXXXX FARGO BANK, N.A.
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) CO-TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
CUSIP NO.: 00000X XX0
FIRST DISTRIBUTION DATE:
APRIL 16, 2007 ISIN NO.: US46630JAJ88
APPROXIMATE AGGREGATE COMMON CODE NO.: 029471878
CERTIFICATE BALANCE
OF THE CLASS A-1S CERTIFICATES CERTIFICATE NO.: A-1S-[--]
AS OF THE CLOSING DATE: $200,000,000
CLASS A-1S CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1S Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Co-Trustee, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1S Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1S Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-1S Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1S CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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-3
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS A-2
THIS CLASS A-2 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.4340% MASTER SERVICERS: MIDLAND LOAN
SERVICES, INC. AND WACHOVIA BANK,
DENOMINATION: $250,000,000 NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: X.X. XXXXXX COMPANY,
AGREEMENT: AS OF MARCH 1, 2007 INC.
CUT-OFF DATE: AS SET FORTH IN THE TRUSTEE: XXXXX FARGO BANK, N.A.
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) CO-TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
CUSIP NO.: 46630J AB5
FIRST DISTRIBUTION DATE:
APRIL 16, 2007 ISIN NO.: US46630JAB52
APPROXIMATE AGGREGATE COMMON CODE NO.: 029471738
CERTIFICATE BALANCE
OF THE CLASS A-2 CERTIFICATES CERTIFICATE NO.: A-2-[--]
AS OF THE CLOSING DATE: $250,000,000
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class A-2 Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Co-Trustee, the Master Servicers and the Special Servicer. A summary of certain
of the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-2 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-2 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-2 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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
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(Please insert Social Security or other identifying number of Assignee)
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(Please print or typewrite name and address of assignee)
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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.
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SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-4
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS A-2S
THIS CLASS A-2S CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.3050% MASTER SERVICERS: MIDLAND LOAN
SERVICES, INC. AND WACHOVIA BANK,
DENOMINATION: [$500,000,000] NATIONAL ASSOCIATION
[$188,857,000]
SPECIAL SERVICER: X.X. XXXXXX COMPANY,
DATE OF POOLING AND SERVICING INC.
AGREEMENT: AS OF MARCH 1, 2007
TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CO-TRUSTEE: LASALLE BANK NATIONAL
DEFINED HEREIN) ASSOCIATION
CLOSING DATE: MARCH 29, 2007 CUSIP NO.: 46630J AK5
FIRST DISTRIBUTION DATE: ISIN NO.: US46630JAK51
APRIL 16, 2007
COMMON CODE NO.: 029471886
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: A-2S-[--]
OF THE CLASS A-2S CERTIFICATES
AS OF THE CLOSING DATE: $688,857,000
CLASS A-2S CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class A-2S Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Co-Trustee, the Master Servicers and the Special Servicer. A summary of certain
of the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-2S Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-2S Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-2S Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2S CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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-5
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS A-2SFL
THIS CLASS A-2SFL CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE REPRESENTS AN UNDIVIDED BENEFICIAL
INTEREST IN A REMIC REGULAR INTEREST AND A SWAP CONTRACT AND CONSTITUTES AN
INTEREST IN A GRANTOR TRUST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PASS-THROUGH RATE ON THIS CERTIFICATE IS BASED UPON LIBOR AND THEREFORE IS
SUBJECT TO CHANGE OVER TIME BASED UPON CHANGES IN THE RATE OF LIBOR. IN
ADDITION, THE PASS-THROUGH RATE ON THIS CLASS A-2SFL CERTIFICATE MAY CONVERT TO
A FIXED PER ANNUM RATE UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE POOLING AND
SERVICING AGREEMENT.
PASS-THROUGH RATE: FLOATING IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION
DENOMINATION: $150,000,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: 46630J AL3
CLOSING DATE: MARCH 29, 2007
ISIN NO.: US46630JAL35
FIRST DISTRIBUTION DATE: APRIL 16, 2007
COMMON CODE NO.: 029471916
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: A-2SFL-[--]
OF THE CLASS A-2SFL CERTIFICATES
AS OF THE CLOSING DATE: $150,000,000
CLASS A-2SFL CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class A-2SFL Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Co-Trustee, the Master Servicers and the Special Servicer. A summary of certain
of the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-2SFL Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate represents a beneficial interest in a portion of a
grantor trust under subpart E, Part I of subchapter J of the Internal Revenue
Code of 1986, as amended, which portion consists of the Class A-2SFL Regular
Interest, the related Swap Contract and the related Floating Rate Account. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges in limited circumstances as provided in the Pooling
and Servicing Agreement. All sums distributable on this Certificate are payable
in the coin or currency of the United States of America as at the time of
payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (calculated on the basis of
the actual number of days in the month and assuming each year has 360 days)
during the applicable Interest Accrual Period relating to such Distribution Date
at the Class A-2SFL Pass-Through Rate specified above on the Certificate Balance
of this Certificate immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount equal to this Certificate's pro rata share of the Class A-2SFL Available
Funds to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement. Distributions
in respect of the Class A-2SFL Certificates may depend, in part, on payments
from the Swap Counterparty under the related Swap Contract as more specifically
set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the
Distribution Accounts and the Floating Rate Accounts will be held on behalf of
the Trustee on behalf of the Holders of Certificates specified in the Pooling
and Servicing Agreement and each Master Servicer (with respect to its related
Certificate Account) or the Trustee (with respect to the Distribution Accounts
and the Floating Rate Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate
Accounts will be paid to the applicable Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-2SFL Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of $100,000 initial Certificate Balance, and
in integral multiples of $1 in excess thereof, with one Certificate of each such
Class evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Co-Trustee with the consent of the Holders of Certificates representing
not less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee and the Trustee shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on either the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier
REMIC or cause the Grantor Trust to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2SFL CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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-6
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS A-3
THIS CLASS A-3 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.4200% MASTER SERVICERS: MIDLAND LOAN SERVICES,
INC. AND WACHOVIA BANK, NATIONAL
DENOMINATION: [$500,000,000] ASSOCIATION
[$500,000,000] [$500,000,000]
[$214,136,000] SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: 46630J AC3
CLOSING DATE: MARCH 29, 2007
ISIN NO.: US46630JAC36
FIRST DISTRIBUTION DATE:
APRIL 16, 2007 COMMON CODE NO.: 029471746
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-3-[--]
CERTIFICATE BALANCE
OF THE CLASS A-3 CERTIFICATES
AS OF THE CLOSING DATE: $1,714,136,000
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class A-3 Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Co-Trustee, the Master Servicers and the Special Servicer. A summary of certain
of the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-3 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-3 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-3 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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-7
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS A-3S
THIS CLASS A-3S CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.3170% MASTER SERVICERS: MIDLAND LOAN SERVICES,
INC. AND WACHOVIA BANK, NATIONAL
DENOMINATION: $179,937,000 ASSOCIATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: X.X. XXXXXX COMPANY,
AGREEMENT: AS OF MARCH 1, 2007 INC.
CUT-OFF DATE: AS SET FORTH IN THE TRUSTEE: XXXXX FARGO BANK, N.A.
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) CO-TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
CUSIP NO.: 46630J AM1
FIRST DISTRIBUTION DATE:
APRIL 16, 2007 ISIN NO.: US46630JAM18
APPROXIMATE AGGREGATE COMMON CODE NO.: 029472149
CERTIFICATE BALANCE
OF THE CLASS A-3S CERTIFICATES CERTIFICATE NO.: A-3S-[--]
AS OF THE CLOSING DATE: $179,937,000
CLASS A-3S CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class A-3S Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Co-Trustee, the Master Servicers and the Special Servicer. A summary of certain
of the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-3S Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee Trustee. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-3S Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-3S Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3S CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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-8
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS A-1A
THIS CLASS A-1A CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.4390% MASTER SERVICERS: MIDLAND LOAN SERVICES,
INC. AND WACHOVIA BANK, NATIONAL
DENOMINATION: [$500,000,000] ASSOCIATION
[$7,300,000]
SPECIAL SERVICER: X.X. XXXXXX COMPANY,
DATE OF POOLING AND SERVICING INC.
AGREEMENT: AS OF MARCH 1, 2007
TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CO-TRUSTEE: LASALLE BANK NATIONAL
DEFINED HEREIN) ASSOCIATION
CLOSING DATE: MARCH 29, 2007 CUSIP NO.: 46630J AD1
FIRST DISTRIBUTION DATE: ISIN NO.: US46630JAD19
APRIL 16, 2007
COMMON CODE NO.: 029471754
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: A-1A-[--]
OF THE CLASS A-1A CERTIFICATES
AS OF THE CLOSING DATE: $507,300,000
CLASS A-1A CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class A-1A Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Co-Trustee, the Master Servicers and the Special Servicer. A summary of certain
of the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1A Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1A Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-1A Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee, without the consent of any of the Certificateholders
or Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time
to time by the Depositor, the Master Servicers, the Special Servicer, the
Trustee and the Co-Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee and the Trustee shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on either the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier
REMIC or cause the Grantor Trust to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1A CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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-9
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS X
THIS CLASS X CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY
DISTRIBUTION OF PRINCIPAL.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS X
CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION
DENOMINATION: [$500,000,000] SPECIAL SERVICER: X.X. XXXXXX COMPANY,
[$500,000,000] [$500,000,000] INC.
[$500,000,000] [$500,000,000]
[$500,000,000] [$500,000,000] TRUSTEE: XXXXX FARGO BANK, N.A.
[$500,000,000] [$500,000,000]
[$500,000,000] [$331,517,186] CO-TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 CUSIP NO.:46630J AH2
CUT-OFF DATE: AS DEFINED IN THE POOLING ISIN NO.: US46630JAH23
AND SERVICING AGREEMENT (AS DEFINED
HEREIN) COMMON CODE: 029471860
CLOSING DATE: MARCH 29, 2007 CERTIFICATE NO.: X-[--]
FIRST DISTRIBUTION DATE:
APRIL 16, 2007
APPROXIMATE AGGREGATE NOTIONAL AMOUNT
OF THE CLASS X CERTIFICATES AS OF THE
CLOSING DATE: $5,331,517,186
CLASS X CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class X Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Co-Trustee, the Master Servicers and the Special Servicer. A summary of certain
of the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued
in the classes as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
This Class X Certificate has no principal balance and will not
receive any distribution of principal.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class X Pass-Through
Rate specified above on the Notional Amount of this Certificate immediately
prior to such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount, and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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
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(Please insert Social Security or other identifying number of Assignee)
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(Please print or typewrite name and address of assignee)
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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.
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SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-10
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS A-M
THIS CLASS A-M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION
DENOMINATION: $359,038,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: 46630J AE9
CLOSING DATE: MARCH 29, 2007
ISIN NO.: US46630JAE91
FIRST DISTRIBUTION DATE:
APRIL 16, 2007 COMMON CODE NO.: 029471819
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-M-[--]
CERTIFICATE BALANCE
OF THE CLASS A-M CERTIFICATES
AS OF THE CLOSING DATE: $359,038,000
CLASS A-M CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class A-M Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Co-Trustee, the Master Servicers and the Special Servicer. A summary of certain
of the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-M Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-M Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-M Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Co-Trustee with the consent of the Holders of Certificates representing
not less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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-11
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS A-MS
THIS CLASS A-MS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION
DENOMINATION: $174,114,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: 46630J AN9
CLOSING DATE: MARCH 29, 2007
ISIN NO.: US46630JAN90
FIRST DISTRIBUTION DATE:
APRIL 16, 2007 COMMON CODE NO.: 029472181
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-MS-[--]
CERTIFICATE BALANCE
OF THE CLASS A-MS CERTIFICATES
AS OF THE CLOSING DATE: $174,114,000
CLASS A-MS CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class A-MS Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Co-Trustee, the Master Servicers and the Special Servicer. A summary of certain
of the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-MS Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-MS Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-MS Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the , the Trustee
to make payments to Certificateholders as provided for in the Pooling and
Servicing Agreement), shall terminate upon reduction of the Certificate Balances
of all the Certificates to zero (including, without limitation, any such final
payment resulting from a termination of the Trust Fund due to a sale of its
property) pursuant to the terms of the Pooling and Servicing Agreement. In no
event, however, will the Trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United
States to the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-MS CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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-12
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS A-J
THIS CLASS A-J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION
DENOMINATION: $200,694,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: 46630J AG4
CLOSING DATE: MARCH 29, 2007
ISIN NO.: US46630JAG40
FIRST DISTRIBUTION DATE:
APRIL 16, 2007 COMMON CODE NO.: 029471827
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-J-[--]
CERTIFICATE BALANCE
OF THE CLASS A-J CERTIFICATES
AS OF THE CLOSING DATE: $200,694,000
CLASS A-J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class A-J Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Co-Trustee, the Master Servicers and the Special Servicer. A summary of certain
of the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-J Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-J Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-J Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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-13
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS A-JFL
THIS CLASS A-JFL CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE REPRESENTS AN UNDIVIDED BENEFICIAL
INTEREST IN A REMIC REGULAR INTEREST AND A SWAP CONTRACT AND CONSTITUTES AN
INTEREST IN A GRANTOR TRUST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PASS-THROUGH RATE ON THIS CERTIFICATE IS BASED UPON LIBOR AND THEREFORE IS
SUBJECT TO CHANGE OVER TIME BASED UPON CHANGES IN THE RATE OF LIBOR. IN
ADDITION, THE PASS-THROUGH RATE ON THIS CLASS A-JFL CERTIFICATE MAY CONVERT TO A
FIXED PER ANNUM RATE UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE POOLING AND
SERVICING AGREEMENT.
PASS-THROUGH RATE: FLOATING IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION
DENOMINATION: $100,000,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: 46630J CQ0
CLOSING DATE: MARCH 29, 2007
ISIN NO.: US46630JCQ04
FIRST DISTRIBUTION DATE:
APRIL 16, 2007 COMMON CODE NO.: 029471843
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-JFL-[--]
CERTIFICATE BALANCE
OF THE CLASS A-JFL CERTIFICATES
AS OF THE CLOSING DATE: $100,000,000
CLASS A-JFL CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class A-JFL Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Co-Trustee, the Master Servicers and the Special Servicer. A summary of certain
of the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-JFL Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate represents a beneficial interest in a portion of a
grantor trust under subpart E, Part I of subchapter J of the Internal Revenue
Code of 1986, as amended, which portion consists of the Class A-JFL Regular
Interest, the related Swap Contract and the related Floating Rate Account. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges in limited circumstances as provided in the Pooling
and Servicing Agreement. All sums distributable on this Certificate are payable
in the coin or currency of the United States of America as at the time of
payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (calculated on the basis of
the actual number of days in the month and assuming each year has 360 days)
during the applicable Interest Accrual Period relating to such Distribution Date
at the Class A-JFL Pass-Through Rate specified above on the Certificate Balance
of this Certificate immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount equal to this Certificate's pro rata share of the Class A-JFL Available
Funds to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement. Distributions
in respect of the Class A-JFL Certificates may depend, in part, on payments from
the Swap Counterparty under the related Swap Contract as more specifically set
forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the
Distribution Accounts and the Floating Rate Accounts will be held on behalf of
the Trustee on behalf of the Holders of Certificates specified in the Pooling
and Servicing Agreement and each Master Servicer (with respect to its related
Certificate Account) or the Trustee (with respect to the Distribution Accounts
and the Floating Rate Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate
Accounts will be paid to the applicable Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-JFL Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of $100,000 initial Certificate Balance, and
in integral multiples of $1 in excess thereof, with one Certificate of each such
Class evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 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, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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-14
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS A-JS
THIS CLASS A-JS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION
DENOMINATION: $145,820,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: 46630J AP4
CLOSING DATE: MARCH 29, 2007
ISIN NO.: US46630JAP49
FIRST DISTRIBUTION DATE:
APRIL 16, 2007 COMMON CODE NO.: 029472203
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-JS-[--]
CERTIFICATE BALANCE
OF THE CLASS A-JS CERTIFICATES
AS OF THE CLOSING DATE: $145,820,000
CLASS A-JS CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class A-JS Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Co-Trustee, the Master Servicers and the Special Servicer. A summary of certain
of the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-JS Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-JS Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-JS Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-JS CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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-15
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS B-S
THIS CLASS B-S CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION
DENOMINATION: $34,823,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: 46630J BE8
CLOSING DATE: MARCH 29, 2007
ISIN NO.: US46630JBE82
FIRST DISTRIBUTION DATE:
APRIL 16, 2007 COMMON CODE NO.: 029472238
APPROXIMATE AGGREGATE CERTIFICATE NO.: B-S-[--]
CERTIFICATE BALANCE
OF THE CLASS B-S CERTIFICATES
AS OF THE CLOSING DATE: $34,823,000
CLASS B-S CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class B-S Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Co-Trustee, the Master Servicers and the Special Servicer. A summary of certain
of the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
B-S Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class B-S Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class B-S Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B-S CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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-16
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS C-S
THIS CLASS C-S CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION
DENOMINATION: $13,058,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: 46630J BG3
CLOSING DATE: MARCH 29, 2007
ISIN NO.: US46630JBG31
FIRST DISTRIBUTION DATE:
APRIL 16, 2007 COMMON CODE NO.: 029472246
APPROXIMATE AGGREGATE CERTIFICATE NO.: C-S-[--]
CERTIFICATE BALANCE
OF THE CLASS C-S CERTIFICATES
AS OF THE CLOSING DATE: $13,058,000
CLASS C-S CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class C-S Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Co-Trustee, the Master Servicers and the Special Servicer. A summary of certain
of the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
C-S Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class C-S Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class C-S Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C-S CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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-17
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS D-S
THIS CLASS D-S CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION
DENOMINATION: $23,941,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: 46630J BJ7
CLOSING DATE: MARCH 29, 2007
ISIN NO.: US46630JBJ79
FIRST DISTRIBUTION DATE:
APRIL 16, 2007 COMMON CODE NO.: 029472262
APPROXIMATE AGGREGATE CERTIFICATE NO.: D-S-[--]
CERTIFICATE BALANCE
OF THE CLASS D-S CERTIFICATES
AS OF THE CLOSING DATE: $23,941,000
CLASS D-S CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class D-S Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Co-Trustee, the Master Servicers and the Special Servicer. A summary of certain
of the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
D-S Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class D-S Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class D-S Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D-S CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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-18
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS B
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION
DENOMINATION: $71,808,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48120 AA 4](1) [46630J AQ
CLOSING DATE: MARCH 29, 2007 2](2) [46630J AR 0](3)
FIRST DISTRIBUTION DATE: ISIN NO.: [USU48120AA47](1)
APRIL 16, 2007 [US46630JAQ22](2) [US46630JAR05](3)
APPROXIMATE AGGREGATE COMMON CODE NO.: [029469237](1)
CERTIFICATE BALANCE [029470715](2)
OF THE CLASS B CERTIFICATES
AS OF THE CLOSING DATE: $71,808,000 CERTIFICATE NO.: B-[--]
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class B Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Co-Trustee, the Master Servicers and the Special Servicer. A summary of certain
of the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class B
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class B Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class B Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 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, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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-19
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS C
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION
DENOMINATION: $26,928,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48120 AB 2](1) [46630J AS
CLOSING DATE: MARCH 29, 2007 8](2) [46630J AT 6](3)
FIRST DISTRIBUTION DATE: ISIN NO.: [USU48120AB20](1)
APRIL 16, 2007 [US46630JAS87](2) [US46630JAT60](3)
APPROXIMATE AGGREGATE COMMON CODE NO.: [029469598](1)
CERTIFICATE BALANCE [029470740](2)
OF THE CLASS C CERTIFICATES
AS OF THE CLOSING DATE: $26,928,000 CERTIFICATE NO.: C-[--]
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class C Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Co-Trustee, the Master Servicers and the Special Servicer. A summary of certain
of the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class C
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class C Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class C Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 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, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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-20
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS D
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION
DENOMINATION: $49,367,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48120 AC 0](1) [46630J AU
CLOSING DATE: MARCH 29, 2007 3](2) [46630J AV 1](3)
FIRST DISTRIBUTION DATE: ISIN NO.: [USU48120AC03](1)
APRIL 16, 2007 [US46630JAU34](2) [US46630JAV17](3)
APPROXIMATE AGGREGATE COMMON CODE NO.: [029469679](1)
CERTIFICATE BALANCE [029470758](2)
OF THE CLASS D CERTIFICATES
AS OF THE CLOSING DATE: $49,367,000 CERTIFICATE NO.: D-[--]
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class D Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Co-Trustee, the Master Servicers and the Special Servicer. A summary of certain
of the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class D
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class D Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class D Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 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, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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-21
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS E
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION.
DENOMINATION: $40,392,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48120 AD 8](1) [46630J AW
CLOSING DATE: MARCH 29, 2007 9](2) [46630J AX 7](3)
FIRST DISTRIBUTION DATE: ISIN NO.: [USU48120AD85](1)
APRIL 16, 2007 [US46630JAW99](2) [US46630JAX72](3)
APPROXIMATE AGGREGATE COMMON CODE NO.: [029469792](1)
CERTIFICATE BALANCE [029470766](2)
OF THE CLASS E CERTIFICATES
AS OF THE CLOSING DATE: $40,392,000 CERTIFICATE NO.: E-[--]
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class E Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Co-Trustee, the Master Servicers and the Special Servicer. A summary of certain
of the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class E
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class E Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class E Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 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, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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-22
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS E-S
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS E-S CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION.
DENOMINATION: $19,588,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48120 AL 0](1) [46630J BL
CLOSING DATE: MARCH 29, 2007 2](2) [46630J BM 0](3)
FIRST DISTRIBUTION DATE: ISIN NO.: [USU48120AL02](1)
APRIL 16, 2007 [US46630JBL26](2) [US46630JBM09](3)
APPROXIMATE AGGREGATE COMMON CODE NO.: [029470120](1)
CERTIFICATE BALANCE [029470847](2)
OF THE CLASS E-S CERTIFICATES
AS OF THE CLOSING DATE: $19,588,000 CERTIFICATE NO.: E-S-[--]
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS E-S CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class E-S Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Co-Trustee, the Master Servicers and the Special Servicer. A summary of certain
of the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
E-S Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class E-S Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class E-S Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E-S CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
---------------------------------------------------------------
------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
Dated: NOTICE: The signature to this
------------------------ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-23
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS F
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION.
DENOMINATION: $44,880,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48120 AE 6](1) [46630J AY
CLOSING DATE: MARCH 29, 2007 5](2) [46630J AZ 2](3)
FIRST DISTRIBUTION DATE: ISIN NO.: [USU48120AE68](1)
APRIL 16, 2007 [US46630JAY55](2) [US46630JAZ21](3)
APPROXIMATE AGGREGATE COMMON CODE NO.: [029469920](1)
CERTIFICATE BALANCE [029470782](2)
OF THE CLASS F CERTIFICATES
AS OF THE CLOSING DATE: $44,880,000 CERTIFICATE NO.: F-[--]
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class F Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Co-Trustee, the Master Servicers and the Special Servicer. A summary of certain
of the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class F
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class F Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class F Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 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, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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)
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the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
Dated: NOTICE: The signature to this
------------------------ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-24
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS F-S
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS F-S CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION.
DENOMINATION: $21,764,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48120 AM 8](1) [46630J BN
CLOSING DATE: MARCH 29, 2007 8](2) [46630J BP 3](3)
FIRST DISTRIBUTION DATE: ISIN NO.: [USU48120AM84](1)
APRIL 16, 2007 [US46630JBN81](2) [US46630JBP30](3)
APPROXIMATE AGGREGATE COMMON CODE NO.: [029470154](1)
CERTIFICATE BALANCE [029470855](2)
OF THE CLASS F-S CERTIFICATES
AS OF THE CLOSING DATE: $21,764,000 CERTIFICATE NO.: F-S-[--]
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS F-S CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class F-S Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Co-Trustee, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
F-S Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class F-S Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class F-S Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F-S CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
---------------------------------------------------------------
------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
Dated: NOTICE: The signature to this
------------------------ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-25
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS G
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION.
DENOMINATION: $44,880,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48120 AF 3](1) [46630J BA
CLOSING DATE: MARCH 29, 2007 6](2) [46630J BB 4](3)
FIRST DISTRIBUTION DATE: ISIN NO.: [USU48120AF34](1)
APRIL 16, 2007 [US46630JBA60](2) [US46630JBB44](3)
APPROXIMATE AGGREGATE COMMON CODE NO.: [029469997](1)
CERTIFICATE BALANCE [029470804](2)
OF THE CLASS G CERTIFICATES
AS OF THE CLOSING DATE: $44,880,000 CERTIFICATE NO.: G-[--]
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class G Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Co-Trustee, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class G
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class G Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class G Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 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, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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)
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the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
Dated: NOTICE: The signature to this
------------------------ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-26
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS G-S
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS G-S CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION.
DENOMINATION: $21,764,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48120 AN 6](1) [46630J BQ
CLOSING DATE: MARCH 29, 2007 1](2) [46630J BR 9](3)
FIRST DISTRIBUTION DATE: ISIN NO.: [USU48120AN67](1)
APRIL 16, 2007 [US46630JBQ13](2) [US46630JBR95](3)
APPROXIMATE AGGREGATE COMMON CODE NO.: [029470162](1)
CERTIFICATE BALANCE [029470863](2)
OF THE CLASS G-S CERTIFICATES
AS OF THE CLOSING DATE: $21,764,000 CERTIFICATE NO.: G-S-[--]
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS G-S CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class G-S Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Co-Trustee, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
G-S Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class G-S Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class G-S Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G-S CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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-27
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS H
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION.
DENOMINATION: $40,392,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48120 AG 1](1) [46630J BC
CLOSING DATE: MARCH 29, 2007 2](2) [46630J BD 0](3)
FIRST DISTRIBUTION DATE: ISIN NO.: [USU48120AG17](1)
APRIL 16, 2007 [US46630JBC27](2) [US46630JBD00](3)
APPROXIMATE AGGREGATE COMMON CODE NO.: [029470057](1)
CERTIFICATE BALANCE [029470839](2)
OF THE CLASS H CERTIFICATES
AS OF THE CLOSING DATE: $40,392,000 CERTIFICATE NO.: H-[--]
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class H Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Co-Trustee, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class H
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class H Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class H Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 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, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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-28
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS H-S
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS H-S CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION.
DENOMINATION: $19,588,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48120 AP 1](1) [46630J BS
CLOSING DATE: MARCH 29, 2007 7](2) [46630J BT 5](3)
FIRST DISTRIBUTION DATE: ISIN NO.: [USU48120AP16](1)
APRIL 16, 2007 [US46630JBS78](2) [US46630JBT51](3)
APPROXIMATE AGGREGATE COMMON CODE NO.: [029470197](1)
CERTIFICATE BALANCE [029470871](2)
OF THE CLASS H-S CERTIFICATES
AS OF THE CLOSING DATE: $19,588,000 CERTIFICATE NO.: H-S-[--]
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS H-S CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class H-S Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Co-Trustee, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
H-S Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class H-S Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class H-S Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H-S CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS J
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE
PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND
THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN,
EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS
I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH
CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR REGISTRATION IN
THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE CO-TRUSTEE, THE
INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH
SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A
BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION.
DENOMINATION: $19,993,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48120 AQ 9](1) [46630J BU
CLOSING DATE: MARCH 29, 2007 2](2) [46630J BV 0](3)
FIRST DISTRIBUTION DATE: ISIN NO.: [USU48120AQ98](1)
APRIL 16, 2007 [US46630JBU25](2) [US46630JBV08](3)
APPROXIMATE AGGREGATE COMMON CODE NO.: [029470227](1)
CERTIFICATE BALANCE [029470901](2)
OF THE CLASS J CERTIFICATES
AS OF THE CLOSING DATE: $19,993,000 CERTIFICATE NO.: J-[--]
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Co-Trustee, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class J
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class J Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class J Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 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, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS K
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE
PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND
THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN,
EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS
I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH
CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR REGISTRATION IN
THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE CO-TRUSTEE, THE
INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH
SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A
BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION.
DENOMINATION: $19,993,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48120 AR 7](1) [46630J BW
CLOSING DATE: MARCH 29, 2007 8](2) [46630J BX 6](3)
FIRST DISTRIBUTION DATE: ISIN NO.: [USU48120AR71](1)
APRIL 16, 2007 [US46630JBW80](2) [US46630JBX63](3)
APPROXIMATE AGGREGATE COMMON CODE NO.: [029470243](1)
CERTIFICATE BALANCE [029470910](2)
OF THE CLASS K CERTIFICATES
AS OF THE CLOSING DATE: $19,993,000 CERTIFICATE NO.: K-[--]
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(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class K Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Co-Trustee, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class K
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class K Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class K Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 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, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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
---------------------------------------------------------------
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(Please insert Social Security or other identifying number of Assignee)
------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
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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
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS L
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE
PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND
THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN,
EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS
I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH
CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR REGISTRATION IN
THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE CO-TRUSTEE, THE
INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH
SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A
BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION.
DENOMINATION: $13,329,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48120 AS 5](1) [46630J BY
CLOSING DATE: MARCH 29, 2007 4](2) [46630J BZ 1](3)
FIRST DISTRIBUTION DATE: ISIN NO.: [USU48120AS54](1)
APRIL 16, 2007 [US46630JBY47](2) [US46630JBZ12](3)
APPROXIMATE AGGREGATE COMMON CODE NO.: [029470324](1)
CERTIFICATE BALANCE [029470944](2)
OF THE CLASS L CERTIFICATES
AS OF THE CLOSING DATE: $13,329,000 CERTIFICATE NO.: L-[--]
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class L Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Co-Trustee, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class L
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class L Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class L Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 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, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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
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(Please insert Social Security or other identifying number of Assignee)
------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
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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
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS M
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE
PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND
THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN,
EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS
I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH
CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR REGISTRATION IN
THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE CO-TRUSTEE, THE
INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH
SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A
BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION.
DENOMINATION: $6,665,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48120 AT 3](1) [46630J CA
CLOSING DATE: MARCH 29, 2007 5](2) [46630J CB 3](3)
FIRST DISTRIBUTION DATE: ISIN NO.: [USU48120AT38](1)
APRIL 16, 2007 [US46630JCA51](2) [US46630JCB35](3)
APPROXIMATE AGGREGATE COMMON CODE NO.: [029470430](1)
CERTIFICATE BALANCE [029470952](2)
OF THE CLASS M CERTIFICATES
AS OF THE CLOSING DATE: $6,665,000 CERTIFICATE NO.: M-[--]
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(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class M Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Co-Trustee, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class M
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class M Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class M Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 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, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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)
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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-33
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS N
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE
PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND
THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN,
EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS
I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH
CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR REGISTRATION IN
THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE CO-TRUSTEE, THE
INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH
SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A
BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION.
DENOMINATION: $6,664,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48120 AU 0](1) [46630J CC
CLOSING DATE: MARCH 29, 2007 1](2) [46630J CD 9](3)
FIRST DISTRIBUTION DATE: ISIN NO.: [USU48120AU01](1)
APRIL 16, 2007 [US46630JCC18](2) [US46630JCD90](3)
APPROXIMATE AGGREGATE COMMON CODE NO.: [029470456](1)
CERTIFICATE BALANCE [029470987](2)
OF THE CLASS N CERTIFICATES
AS OF THE CLOSING DATE: $6,664,000 CERTIFICATE NO.: N-[--]
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class N Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Co-Trustee, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class N
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class N Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class N Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 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, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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)
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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-34
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS P
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS P CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE
PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND
THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN,
EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS
I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH
CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR REGISTRATION IN
THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE CO-TRUSTEE, THE
INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH
SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A
BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION.
DENOMINATION: $13,329,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48120 AV 8](1) [46630J CE
CLOSING DATE: MARCH 29, 2007 7](2) [46630J CF 4](3)
FIRST DISTRIBUTION DATE: ISIN NO.: [USU48120AV83](1)
APRIL 16, 2007 [US46630JCE73](2) [US46630JCF49](3)
APPROXIMATE AGGREGATE COMMON CODE NO.: [029470529](1)
CERTIFICATE BALANCE [029471045](2)
OF THE CLASS P CERTIFICATES
AS OF THE CLOSING DATE: $13,329,000 CERTIFICATE NO.: P-[--]
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS P CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class P Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Co-Trustee, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class P
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class P Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class P Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 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, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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)
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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-35
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS NR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS NR CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE
PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND
THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN,
EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS
I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH
CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR REGISTRATION IN
THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE CO-TRUSTEE, THE
INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH
SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A
BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND WACHOVIA BANK, NATIONAL
SERVICING AGREEMENT ASSOCIATION.
DENOMINATION: $66,644,186 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CO-TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [U48120 AW 6](1) [46630J CG
CLOSING DATE: MARCH 29, 2007 2](2) [46630J CH 0](3)
FIRST DISTRIBUTION DATE: ISIN NO.: [USU48120AW66](1)
APRIL 16, 2007 [US46630JCG22](2) [US46630JCH05](3)
APPROXIMATE AGGREGATE COMMON CODE NO.: [029470600](1)
CERTIFICATE BALANCE [029471070](2)
OF THE CLASS NR CERTIFICATES
AS OF THE CLOSING DATE: $66,644,186 CERTIFICATE NO.: NR-[--]
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS NR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class NR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Co-Trustee, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class NR
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class NR Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class NR Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS NR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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.
1
EXHIBIT A-36
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS S
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A.
THIS CERTIFICATE REPRESENTS AN INTEREST IN A GRANTOR TRUST UNDER THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED AN INVESTMENT REPRESENTATION LETTER FROM THE
PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND SUBSTANCE
SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE EFFECT THAT
SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION
3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE
CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH,
A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3-101).
EACH PURCHASER OF THIS CERTIFICATE SHALL BE REQUIRED TO DELIVER AN INVESTMENT
REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE POOLING AND
SERVICING AGREEMENT.
PERCENTAGE INTEREST EVIDENCED BY MASTER SERVICERS: MIDLAND LOAN SERVICES,
THIS CERTIFICATE: 100% INC. AND WACHOVIA BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT TRUSTEE: XXXXX FARGO BANK, N.A.
(AS DEFINED HEREIN)
CO-TRUSTEE: LASALLE BANK NATIONAL
CLOSING DATE: MARCH 29, 2007 ASSOCIATION.
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: S-[--]
APRIL 16, 2007
CLASS S PERCENTAGE INTEREST: 100%
CLASS S CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT JER INVESTORS TRUST INC.
is the registered owner of the interest evidenced by this Certificate in the
Class S Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Co-Trustee, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued
in the classes as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate represents a beneficial interest in a portion of a
grantor trust under subpart E, Part I of subchapter J of the Internal Revenue
Code of 1986, as amended, which portion consists of the Excess Interest and the
Excess Interest Distribution Account. Each Holder of this Certificate, by
acceptance hereof, agrees to treat, and take no action inconsistent with the
treatment of, this Certificate in accordance with the preceding sentence for
purposes of federal income taxes, state and local income and franchise taxes and
other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
the Excess Interest then distributable, if any, allocable to the Class S
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to Excess Interest
collected on the Mortgage Loans, all as more specifically set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, the Certificate Account and the Distribution Accounts will be held on
behalf of the Trustee on behalf of the Holders of Certificates specified in the
Pooling and Servicing Agreement and each Master Servicer (with respect to its
related Certificate Account) or the Trustee (with respect to the Distribution
Accounts) will be authorized to make withdrawals therefrom. Amounts on deposit
in such accounts may be invested in Permitted Investments. Interest or other
income earned on funds in the Certificate Accounts will be paid to the
applicable Master Servicer as set forth in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, withdrawals from the
Certificate Accounts shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
The Class S Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer of this Certificate,
the Transferor shall reimburse the Trust for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided in Section 5.02 of the Pooling and Servicing Agreement) incurred by
the Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Co-Trustee with the consent of the Holders of Certificates representing
not less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, the Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust
to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 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, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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.
1
EXHIBIT A-37
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS R
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE. OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA,
OR A CHURCH PLAN, AS DEFINED IN SECTION 3(33) OF ERISA, FOR WHICH NO ELECTION
HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE CERTIFICATE REGISTRAR TO THE EFFECT THAT,
AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS
DEFINED IN CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR
OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS MASTER SERVICERS: MIDLAND LOAN SERVICES,
CERTIFICATE: 100% INC. AND WACHOVIA BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS TRUSTEE: XXXXX FARGO BANK, N.A.
DEFINED HEREIN)
CO-TRUSTEE: LASALLE BANK NATIONAL
CLOSING DATE: MARCH 29, 2007 ASSOCIATION
FIRST DISTRIBUTION DATE: CUSIP NO.: [U48120 AX 4] (1) [46630J CJ
APRIL 16, 2007 6](2) [46630J CK 3](3)
CLASS R PERCENTAGE INTEREST: 100% ISIN NO.: [USU48120AX40](1)
[US46630JCJ60](2) [US46630JCK34](3)
CERTIFICATE NO.: R-[--]
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS R CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
is the registered owner of the interest evidenced by this Certificate in the
Class R Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Co-Trustee, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued
in the classes as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Class R Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class R
Certificates shall be the "tax matters person" for the Upper-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Trustee is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Trustee in an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) and to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the
Distribution Date to the Person in whose name this Certificate is registered as
of the related Record Date. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under Section 5.02(d) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class R Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class R Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Master Servicers,
the Trustee and the Certificate Registrar of any change or impending change to
such status; (B) In connection with any proposed Transfer of any Ownership
Interest in a Class R Certificate, the Certificate Registrar shall require
delivery to it, and no Transfer of any Class R Certificate shall be registered
until the Certificate Registrar receives, an affidavit substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer
Affidavit") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of an
Ownership Interest in a Class R Certificate to such proposed Transferee shall be
effected; and (D) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (1) to require a Transfer Affidavit from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest in such Class R Certificate and (2) not to transfer its Ownership
Interest in such Class R Certificate unless it provides to the Certificate
Registrar a letter substantially in the form attached to the Pooling and
Servicing Agreement as Exhibit D-2 (a "Transferor Letter") certifying that,
among other things, it has no actual knowledge that such prospective Transferee
is a Disqualified Organization, an Agent thereof, an ERISA Prohibited Holder or
a Non-U.S. Person.
The Class R, Class MR and Class LR Certificates will be issued in
fully registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust to
fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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.
1
EXHIBIT A-38
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS MR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE. OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA,
OR A CHURCH PLAN, AS DEFINED IN SECTION 3(33) OF ERISA, FOR WHICH NO ELECTION
HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE CERTIFICATE REGISTRAR TO THE EFFECT THAT,
AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS
DEFINED IN CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR
OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS MASTER SERVICERS: MIDLAND LOAN SERVICES,
CERTIFICATE: 100% INC. AND WACHOVIA BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS TRUSTEE: XXXXX FARGO BANK, N.A.
DEFINED HEREIN)
CO-TRUSTEE: LASALLE BANK NATIONAL
CLOSING DATE: MARCH 29, 2007 ASSOCIATION
FIRST DISTRIBUTION DATE: CUSIP NO.: [U48120 AY 2] (1) [46630J CL
APRIL 16, 2007 1](2) [46630J CM 9](3)
CLASS MR PERCENTAGE INTEREST: 100% ISIN NO.: [USU48120AY23](1)
[US46630JCL17](2) [US46630JCM99](3)
CERTIFICATE NO.: MR-[--]
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS MR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
is the registered owner of the interest evidenced by this Certificate in the
Class MR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Co-Trustee, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued
in the classes as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Class MR Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class MR
Certificates shall be the "tax matters person" for the Middle-Tier REMIC
pursuant to Treasury Regulations Section 1.860F-4(d), and the Trustee is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Trustee in an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) and to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the
Distribution Date to the Person in whose name this Certificate is registered as
of the related Record Date. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class MR Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under Section 5.02(d) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class MR Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class MR Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Master Servicers,
the Trustee and the Certificate Registrar of any change or impending change to
such status; (B) In connection with any proposed Transfer of any Ownership
Interest in a Class MR Certificate, the Certificate Registrar shall require
delivery to it, and no Transfer of any Class MR Certificate shall be registered
until the Certificate Registrar receives, an affidavit substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer
Affidavit") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of an
Ownership Interest in a Class MR Certificate to such proposed Transferee shall
be effected; and (D) Each Person holding or acquiring any Ownership Interest in
a Class MR Certificate shall agree (1) to require a Transfer Affidavit from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest in such Class MR Certificate and (2) not to transfer its Ownership
Interest in such Class MR Certificate unless it provides to the Certificate
Registrar a letter substantially in the form attached to the Pooling and
Servicing Agreement as Exhibit D-2 (a "Transferor Letter") certifying that,
among other things, it has no actual knowledge that such prospective Transferee
is a Disqualified Organization, an Agent thereof, an ERISA Prohibited Holder or
a Non-U.S. Person.
The Class R, Class MR and Class LR Certificates will be issued in
fully registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust to
fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS MR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
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.
1
EXHIBIT A-39
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP10, CLASS LR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE. OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA,
OR A CHURCH PLAN, AS DEFINED IN SECTION 3(33) OF ERISA, FOR WHICH NO ELECTION
HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE CERTIFICATE REGISTRAR TO THE EFFECT THAT,
AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS
DEFINED IN CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR
OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS MASTER SERVICERS: MIDLAND LOAN SERVICES,
CERTIFICATE: 100% INC. AND WACHOVIA BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2007 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS TRUSTEE: XXXXX FARGO BANK, N.A.
DEFINED HEREIN)
CO-TRUSTEE: LASALLE BANK NATIONAL
CLOSING DATE: MARCH 29, 2007 ASSOCIATION
FIRST DISTRIBUTION DATE: CUSIP NO.: [U48120 AZ 9] (1) [46630J CN
APRIL 16, 2007 7](2) [46630J CP 2](3)
CLASS LR PERCENTAGE INTEREST: 100% ISIN NO.: [USU48120AZ97](1)
[US46630JCN72](2) [US46630JCP21](3)
CERTIFICATE NO.: LR-[--]
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS LR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
is the registered owner of the interest evidenced by this Certificate in the
Class LR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Co-Trustee, the
Master Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP10,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-LDP10 and are issued
in the classes as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Class LR Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class LR
Certificates shall be the "tax matters person" for the Lower-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Trustee is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Trustee in an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) and to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the
Distribution Date to the Person in whose name this Certificate is registered as
of the related Record Date. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class LR Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under Section 5.02(d) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class LR Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class LR Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Master Servicers,
the Trustee and the Certificate Registrar of any change or impending change to
such status; (B) In connection with any proposed Transfer of any Ownership
Interest in a Class LR Certificate, the Certificate Registrar shall require
delivery to it, and no Transfer of any Class LR Certificate shall be registered
until the Certificate Registrar receives, an affidavit substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer
Affidavit") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of an
Ownership Interest in a Class LR Certificate to such proposed Transferee shall
be effected; and (D) Each Person holding or acquiring any Ownership Interest in
a Class LR Certificate shall agree (1) to require a Transfer Affidavit from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest in such Class LR Certificate and (2) not to transfer its Ownership
Interest in such Class LR Certificate unless it provides to the Certificate
Registrar a letter substantially in the form attached to the Pooling and
Servicing Agreement as Exhibit D-2 (a "Transferor Letter") certifying that,
among other things, it has no actual knowledge that such prospective Transferee
is a Disqualified Organization, an Agent thereof, an ERISA Prohibited Holder or
a Non-U.S. Person.
The Class R, Class MR and Class LR Certificates will be issued in
fully registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the
Co-Trustee and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC, Middle-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC, Middle-Tier REMIC or the Lower-Tier REMIC or cause the Grantor Trust to
fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS LR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
---------------------------------------------------------------
------------------------------------------------------------------------------
(Please insert Social Security or other identifying number of Assignee)
------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
Dated: NOTICE: The signature to this
------------------------ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
JPMCC 2007-LDP10
Mortgage Loan Schedule (Combined)
Loan # Loan Seller Mortgagor Name
------- ----------- -----------------------------------------------------------------------------------
SEQNUM BORROWER
1 NCCI Coconut Point Town Center, LLC
2 JPMCB BP 000 Xxxxxxxxx Xxxxxx LLC
3 EHY CESC Skyline LLC
3.01 EHY CESC Skyline LLC
3.02 EHY CESC Skyline LLC
3.03 EHY CESC Skyline LLC
3.04 EHY CESC Skyline LLC
3.05 EHY CESC Skyline LLC
3.06 EHY CESC Skyline LLC
3.07 EHY CESC Skyline LLC
3.08 EHY CESC Skyline LLC
4 JPMCB Lafayette Buildings, LLC
4.01 JPMCB Lafayette Buildings, LLC
4.02 JPMCB Lafayette Buildings, LLC
4.03 JPMCB Lafayette Buildings, LLC
4.04 JPMCB Lafayette Buildings, LLC
4.05 JPMCB Lafayette Buildings, LLC
4.06 JPMCB Lafayette Buildings, LLC
4.07 JPMCB Lafayette Buildings, LLC
4.08 JPMCB Lafayette Buildings, LLC
4.09 JPMCB Lafayette Buildings, LLC
Industrial CIC Owner LLC, Industrial XX XX Owner LLC, Industrial CT Owner LLC,
Industrial HPM Owner LLC, Industrial Memphis International Owner LLC, Industrial MS
Logistec Owner LLC, Industrial Rickenbacker III Owner LLC, Industrial Southpark IX
5 EHY Owner LLC, Industrial Woodlands Owner LLC
Industrial CIC Owner LLC, Industrial XX XX Owner LLC, Industrial CT Owner LLC,
Industrial HPM Owner LLC, Industrial Memphis International Owner LLC, Industrial MS
Logistec Owner LLC, Industrial Rickenbacker III Owner LLC, Industrial Southpark IX
5.01 EHY Owner LLC, Industrial Woodlands Owner LLC
Industrial CIC Owner LLC, Industrial XX XX Owner LLC, Industrial CT Owner LLC,
Industrial HPM Owner LLC, Industrial Memphis International Owner LLC, Industrial MS
Logistec Owner LLC, Industrial Rickenbacker III Owner LLC, Industrial Southpark IX
5.02 EHY Owner LLC, Industrial Woodlands Owner LLC
Industrial CIC Owner LLC, Industrial XX XX Owner LLC, Industrial CT Owner LLC,
Industrial HPM Owner LLC, Industrial Memphis International Owner LLC, Industrial MS
Logistec Owner LLC, Industrial Rickenbacker III Owner LLC, Industrial Southpark IX
5.03 EHY Owner LLC, Industrial Woodlands Owner LLC
Industrial CIC Owner LLC, Industrial XX XX Owner LLC, Industrial CT Owner LLC,
Industrial HPM Owner LLC, Industrial Memphis International Owner LLC, Industrial MS
Logistec Owner LLC, Industrial Rickenbacker III Owner LLC, Industrial Southpark IX
5.04 EHY Owner LLC, Industrial Woodlands Owner LLC
Industrial CIC Owner LLC, Industrial XX XX Owner LLC, Industrial CT Owner LLC,
Industrial HPM Owner LLC, Industrial Memphis International Owner LLC, Industrial MS
Logistec Owner LLC, Industrial Rickenbacker III Owner LLC, Industrial Southpark IX
5.05 EHY Owner LLC, Industrial Woodlands Owner LLC
Industrial CIC Owner LLC, Industrial XX XX Owner LLC, Industrial CT Owner LLC,
Industrial HPM Owner LLC, Industrial Memphis International Owner LLC, Industrial MS
Logistec Owner LLC, Industrial Rickenbacker III Owner LLC, Industrial Southpark IX
5.06 EHY Owner LLC, Industrial Woodlands Owner LLC
Industrial CIC Owner LLC, Industrial XX XX Owner LLC, Industrial CT Owner LLC,
Industrial HPM Owner LLC, Industrial Memphis International Owner LLC, Industrial MS
Logistec Owner LLC, Industrial Rickenbacker III Owner LLC, Industrial Southpark IX
5.07 EHY Owner LLC, Industrial Woodlands Owner LLC
Industrial CIC Owner LLC, Industrial XX XX Owner LLC, Industrial CT Owner LLC,
Industrial HPM Owner LLC, Industrial Memphis International Owner LLC, Industrial MS
Logistec Owner LLC, Industrial Rickenbacker III Owner LLC, Industrial Southpark IX
5.08 EHY Owner LLC, Industrial Woodlands Owner LLC
Industrial CIC Owner LLC, Industrial XX XX Owner LLC, Industrial CT Owner LLC,
Industrial HPM Owner LLC, Industrial Memphis International Owner LLC, Industrial MS
Logistec Owner LLC, Industrial Rickenbacker III Owner LLC, Industrial Southpark IX
5.09 EHY Owner LLC, Industrial Woodlands Owner LLC
Industrial CIC Owner LLC, Industrial XX XX Owner LLC, Industrial CT Owner LLC,
Industrial HPM Owner LLC, Industrial Memphis International Owner LLC, Industrial MS
Logistec Owner LLC, Industrial Rickenbacker III Owner LLC, Industrial Southpark IX
5.10 EHY Owner LLC, Industrial Woodlands Owner LLC
6 EHY Augusta Mall, LLC, Augusta Mall Anchor Acquisition, LLC
7 EHY Xxxxxxx Partners-Solana Limited Partnership
8 JPMCB CRP-2 Holdings CC, L.P.; CRP-2 Holdings Tall Oaks, LLC
9 JPMCB CRP-2 Holdings CC, L.P.; CRP-2 Holdings Tall Oaks, LLC
10 JPMCB CRP-2 Holdings CC, L.P.; CRP-2 Holdings Tall Oaks, LLC
11 JPMCB CRP-2 Holdings CC, L.P.; CRP-2 Holdings Tall Oaks, LLC
12 JPMCB CRP-2 Holdings CC, L.P.; CRP-2 Holdings Tall Oaks, LLC
13 JPMCB CRP-2 Holdings CC, L.P.; CRP-2 Holdings Tall Oaks, LLC
14 JPMCB CRP-2 Holdings CC, L.P.; CRP-2 Holdings Tall Oaks, LLC
15 JPMCB CRP-2 Holdings CC, L.P.; CRP-2 Holdings Tall Oaks, LLC
16 JPMCB CRP-2 Holdings CC, L.P.; CRP-2 Holdings Tall Oaks, LLC
17 JPMCB CRP-2 Holdings CC, L.P.; CRP-2 Holdings Tall Oaks, LLC
18 JPMCB CRP-2 Holdings CC, L.P.; CRP-2 Holdings Tall Oaks, LLC
19 JPMCB Centro Heritage SPE 5 LLC, Centro Xxxxxxx SPE 5 LLC, Centro Xxxxxxx Fairview Corners
19.01 JPMCB Centro Heritage SPE 5 LLC, Centro Xxxxxxx SPE 5 LLC, Centro Xxxxxxx Fairview Corners
19.02 JPMCB Centro Heritage SPE 5 LLC, Centro Xxxxxxx SPE 5 LLC, Centro Xxxxxxx Fairview Corners
19.03 JPMCB Centro Heritage SPE 5 LLC, Centro Xxxxxxx SPE 5 LLC, Centro Xxxxxxx Fairview Corners
19.04 JPMCB Centro Heritage SPE 5 LLC, Centro Xxxxxxx SPE 5 LLC, Centro Xxxxxxx Fairview Corners
19.05 JPMCB Centro Heritage SPE 5 LLC, Centro Xxxxxxx SPE 5 LLC, Centro Xxxxxxx Fairview Corners
19.06 JPMCB Centro Heritage SPE 5 LLC, Centro Xxxxxxx SPE 5 LLC, Centro Xxxxxxx Fairview Corners
19.07 JPMCB Centro Heritage SPE 5 LLC, Centro Xxxxxxx SPE 5 LLC, Centro Xxxxxxx Fairview Corners
19.08 JPMCB Centro Heritage SPE 5 LLC, Centro Xxxxxxx SPE 5 LLC, Centro Xxxxxxx Fairview Corners
19.09 JPMCB Centro Heritage SPE 5 LLC, Centro Xxxxxxx SPE 5 LLC, Centro Xxxxxxx Fairview Corners
19.10 JPMCB Centro Heritage SPE 5 LLC, Centro Xxxxxxx SPE 5 LLC, Centro Xxxxxxx Fairview Corners
19.11 JPMCB Centro Heritage SPE 5 LLC, Centro Xxxxxxx SPE 5 LLC, Centro Xxxxxxx Fairview Corners
19.12 JPMCB Centro Heritage SPE 5 LLC, Centro Xxxxxxx SPE 5 LLC, Centro Xxxxxxx Fairview Corners
19.13 JPMCB Centro Heritage SPE 5 LLC, Centro Xxxxxxx SPE 5 LLC, Centro Xxxxxxx Fairview Corners
20 JPMCB Southland Mall Properties LLC
21 UBS SRI Eight Franklin Tower LLC
22 UBS Bayview II, LLC
23 UBS Xxx Uniondale Hotel LLC
24 NCCI WALF, LLC
Osprey Lakeview LLC; Osprey Palm Court LLC; Osprey Tampa Oaks, LLC; Osprey-Lakewood
25 JPMCB Ranch Properties LLC; Osprey Westlake, LLC; Osprey Orion Center LLC
Osprey Lakeview LLC; Osprey Palm Court LLC; Osprey Tampa Oaks, LLC; Osprey-Lakewood
25.01 JPMCB Ranch Properties LLC; Osprey Westlake, LLC; Osprey Orion Center LLC
Osprey Lakeview LLC; Osprey Palm Court LLC; Osprey Tampa Oaks, LLC; Osprey-Lakewood
25.02 JPMCB Ranch Properties LLC; Osprey Westlake, LLC; Osprey Orion Center LLC
Osprey Lakeview LLC; Osprey Palm Court LLC; Osprey Tampa Oaks, LLC; Osprey-Lakewood
25.03 JPMCB Ranch Properties LLC; Osprey Westlake, LLC; Osprey Orion Center LLC
Osprey Lakeview LLC; Osprey Palm Court LLC; Osprey Tampa Oaks, LLC; Osprey-Lakewood
25.04 JPMCB Ranch Properties LLC; Osprey Westlake, LLC; Osprey Orion Center LLC
Osprey Lakeview LLC; Osprey Palm Court LLC; Osprey Tampa Oaks, LLC; Osprey-Lakewood
25.05 JPMCB Ranch Properties LLC; Osprey Westlake, LLC; Osprey Orion Center LLC
Osprey Lakeview LLC; Osprey Palm Court LLC; Osprey Tampa Oaks, LLC; Osprey-Lakewood
25.06 JPMCB Ranch Properties LLC; Osprey Westlake, LLC; Osprey Orion Center LLC
26 NCCI Davies Pacific, LLC
27 UBS Center West, A California Limited Partnership
28 UBS 90 Broad Owner, LLC
29 UBS 90-100 Trinity Owner LLC
30 NCCI Jefferson at Pelican Point, L.P.
31 UBS 0000 Xxxxxx Xxxxxx Acquisition Partners, LP
32 UBS Art Mortgage Borrower PROPCO 2006-1B L.P., Art Mortgage Borrower OPCO 2006-1B L.P.
32.01 UBS Art Mortgage Borrower PROPCO 2006-1B L.P., Art Mortgage Borrower OPCO 2006-1B L.P.
32.02 UBS Art Mortgage Borrower PROPCO 2006-1B L.P., Art Mortgage Borrower OPCO 2006-1B L.P.
32.03 UBS Art Mortgage Borrower PROPCO 2006-1B L.P., Art Mortgage Borrower OPCO 2006-1B L.P.
32.04 UBS Art Mortgage Borrower PROPCO 2006-1B L.P., Art Mortgage Borrower OPCO 2006-1B L.P.
33 NCCI 00000 X. Xxxxxxxx Xxxxxx, Inc.
00 XXXX Xxxxx Xxxxxx Apts., Inc.
35 NCCI Boardwalk Apts., Inc.
36 NCCI 0000 X. Xxxxx Xxxx., Inc.
37 NCCI 000 X. Xxxxxxxx Xxxxxx, Inc.
38 NCCI 0000 Xxxxxxxxx Xxxxx, Inc.
39 NCCI Mountainview Apts., Inc.
40 NCCI 0000 Xxxxxx Xxxxxxxx Xxxxx, Inc.
41 NCCI 0000 X Xxxxxxx Xxxxxx, Inc.
42 NCCI 0000 Xxxxxxxxx Xxxx., Inc.
43 NCCI The Victorian Apartments, Inc.
44 JPMCB Hamptons Germantown I, LLC and Hamptons Germantown II, LLC
45 EHY Arches Apartment Homes, LLC
46 JPMCB CRP Holdings C, L.P., CRP Holdings Xxxxxxxx, X.X.
47 JPMCB CRP Holdings C, L.P., CRP Holdings Xxxxxxxx, X.X.
48 JPMCB CRP Holdings C, L.P., CRP Holdings Xxxxxxxx, X.X.
49 JPMCB CRP Holdings C, L.P., CRP Holdings Xxxxxxxx, X.X.
50 NCCI Rubicon Investments II, LLC
00 XXX Xxxxx Xxxx Xxxx LLC
Westmarket Associates 2006 LLC, Little River Associates 2006 LLC, Clinton Associates
2006 LLC, Newmarket Associates 2006 LLC, Apopka Associates 2006 LLC, Westgate
52 SOME II Associates 2006 LLC
Westmarket Associates 2006 LLC, Little River Associates 2006 LLC, Clinton Associates
2006 LLC, Newmarket Associates 2006 LLC, Apopka Associates 2006 LLC, Westgate
52.01 SOME II Associates 2006 LLC
Westmarket Associates 2006 LLC, Little River Associates 2006 LLC, Clinton Associates
2006 LLC, Newmarket Associates 2006 LLC, Apopka Associates 2006 LLC, Westgate
52.02 SOME II Associates 2006 LLC
Westmarket Associates 2006 LLC, Little River Associates 2006 LLC, Clinton Associates
2006 LLC, Newmarket Associates 2006 LLC, Apopka Associates 2006 LLC, Westgate
52.03 SOME II Associates 2006 LLC
Westmarket Associates 2006 LLC, Little River Associates 2006 LLC, Clinton Associates
2006 LLC, Newmarket Associates 2006 LLC, Apopka Associates 2006 LLC, Westgate
52.04 SOME II Associates 2006 LLC
Westmarket Associates 2006 LLC, Little River Associates 2006 LLC, Clinton Associates
2006 LLC, Newmarket Associates 2006 LLC, Apopka Associates 2006 LLC, Westgate
52.05 SOME II Associates 2006 LLC
Westmarket Associates 2006 LLC, Little River Associates 2006 LLC, Clinton Associates
2006 LLC, Newmarket Associates 2006 LLC, Apopka Associates 2006 LLC, Westgate
52.06 SOME II Associates 2006 LLC
53 NCCI Trophy Properties IV B8A, LLC
53.01 NCCI 0000 Xxxxx Xxxxxx
53.02 NCCI 000-000 Xxxxx Xxxxxx
53.03 NCCI 000-000 Xxxxx Xxxxxx
53.04 NCCI 000 X'Xxxxxxx Xxxxxx
53.05 NCCI 0000 Xxxxx Xxx Xxxx Xxxxxx
53.06 NCCI 000 Xxxxx Xxxxxx
53.07 NCCI 000 Xxxxxx Xxxxxx
53.08 NCCI 0000 Xxxxxxx Xxxxxx
54 EHY Salva Delaware, LLC
55 JPMCB Macerich SanTan Phase 2 SPE LLC
56 UBS TGP-Fair Oaks Plaza, LLC
57 UBS SRH Whispering Limited Partnership, SRH Boardwalk Apartments, LLC
57.01 UBS SRH Whispering Limited Partnership, SRH Boardwalk Apartments, LLC
57.02 UBS SRH Whispering Limited Partnership, SRH Boardwalk Apartments, LLC
58 JPMCB Silverado Ranch Plaza LLC
59 JPMCB RPI Xxxxxx Xxxxx Ltd.
60 JPMCB RREEF AMERICA REIT III CORP. GG2
61 JPMCB Art Mortgage Borrower Propco 2006-2 L.P., Art Mortgage Borrower Opco 2006-2 L.P.
61.01 JPMCB Art Mortgage Borrower Propco 2006-2 L.P., Art Mortgage Borrower Opco 2006-2 L.P.
61.02 JPMCB Art Mortgage Borrower Propco 2006-2 L.P., Art Mortgage Borrower Opco 2006-2 L.P.
61.03 JPMCB Art Mortgage Borrower Propco 2006-2 L.P., Art Mortgage Borrower Opco 2006-2 L.P.
61.04 JPMCB Art Mortgage Borrower Propco 2006-2 L.P., Art Mortgage Borrower Opco 2006-2 L.P.
61.05 JPMCB Art Mortgage Borrower Propco 2006-2 L.P., Art Mortgage Borrower Opco 2006-2 L.P.
61.06 JPMCB Art Mortgage Borrower Propco 2006-2 L.P., Art Mortgage Borrower Opco 2006-2 L.P.
61.07 JPMCB Art Mortgage Borrower Propco 2006-2 L.P., Art Mortgage Borrower Opco 2006-2 L.P.
61.08 JPMCB Art Mortgage Borrower Propco 2006-2 L.P., Art Mortgage Borrower Opco 2006-2 L.P.
61.09 JPMCB Art Mortgage Borrower Propco 2006-2 L.P., Art Mortgage Borrower Opco 2006-2 L.P.
61.10 JPMCB Art Mortgage Borrower Propco 2006-2 L.P., Art Mortgage Borrower Opco 2006-2 L.P.
61.11 JPMCB Art Mortgage Borrower Propco 2006-2 L.P., Art Mortgage Borrower Opco 2006-2 L.P.
61.12 JPMCB Art Mortgage Borrower Propco 2006-2 L.P., Art Mortgage Borrower Opco 2006-2 L.P.
61.13 JPMCB Art Mortgage Borrower Propco 2006-2 L.P., Art Mortgage Borrower Opco 2006-2 L.P.
61.14 JPMCB Art Mortgage Borrower Propco 2006-2 L.P., Art Mortgage Borrower Opco 2006-2 L.P.
61.15 JPMCB Art Mortgage Borrower Propco 2006-2 L.P., Art Mortgage Borrower Opco 2006-2 L.P.
61.16 JPMCB Art Mortgage Borrower Propco 2006-2 L.P., Art Mortgage Borrower Opco 2006-2 L.P.
61.17 JPMCB Art Mortgage Borrower Propco 2006-2 L.P., Art Mortgage Borrower Opco 2006-2 L.P.
61.18 JPMCB Art Mortgage Borrower Propco 2006-2 L.P., Art Mortgage Borrower Opco 2006-2 L.P.
61.19 JPMCB Art Mortgage Borrower Propco 2006-2 L.P., Art Mortgage Borrower Opco 2006-2 L.P.
61.20 JPMCB Art Mortgage Borrower Propco 2006-2 L.P., Art Mortgage Borrower Opco 2006-2 L.P.
62 JPMCB Continental 1700 Rosecrans Corporation
63 NCCI MG Pinnacle Heights Apartments LLC
64 NCCI Addison Associates, LLC
65 PNC Anchor Government Properties I, LLC
65.01 PNC Anchor Government Properties I, LLC
65.02 PNC Anchor Government Properties I, LLC
65.03 PNC Anchor Government Properties I, LLC
65.04 PNC Anchor Government Properties I, LLC
65.05 PNC Anchor Government Properties I, LLC
66 JPMCB San Xxxx Office Investments, L.P.
67 NCCI Xxxxxx/Xxxx Huntsville Hotel, LLC
68 NCCI Xxxxx New National, LLC and New National, LLC
69 NCCI Shea and Tatum Associates Limited Partnership
70 UBS 0-00 Xxxx Xxxxxx Owner, LLC
DEMCO 35 L.L.C., DEMCO II L.L.C., DEMCO IV L.L.C., DEMCO XIX L.L.C., Helm Investment
Company L.L.C., Keel Investments L.L.C., MWIP Development
71 UBS L.L.C. and PM Associates II L.L.C.
DEMCO 35 L.L.C., DEMCO II L.L.C., DEMCO IV L.L.C., DEMCO XIX L.L.C., Helm Investment
Company L.L.C., Keel Investments L.L.C., MWIP Development
71.01 UBS L.L.C. and PM Associates II L.L.C.
DEMCO 35 L.L.C., DEMCO II L.L.C., DEMCO IV L.L.C., DEMCO XIX L.L.C., Helm Investment
Company L.L.C., Keel Investments L.L.C., MWIP Development
71.02 UBS L.L.C. and PM Associates II L.L.C.
DEMCO 35 L.L.C., DEMCO II L.L.C., DEMCO IV L.L.C., DEMCO XIX L.L.C., Helm Investment
Company L.L.C., Keel Investments L.L.C., MWIP Development
71.03 UBS L.L.C. and PM Associates II L.L.C.
DEMCO 35 L.L.C., DEMCO II L.L.C., DEMCO IV L.L.C., DEMCO XIX L.L.C., Helm Investment
Company L.L.C., Keel Investments L.L.C., MWIP Development
71.04 UBS L.L.C. and PM Associates II L.L.C.
DEMCO 35 L.L.C., DEMCO II L.L.C., DEMCO IV L.L.C., DEMCO XIX L.L.C., Helm Investment
Company L.L.C., Keel Investments L.L.C., MWIP Development
71.05 UBS L.L.C. and PM Associates II L.L.C.
DEMCO 35 L.L.C., DEMCO II L.L.C., DEMCO IV L.L.C., DEMCO XIX L.L.C., Helm Investment
Company L.L.C., Keel Investments L.L.C., MWIP Development
71.06 UBS L.L.C. and PM Associates II L.L.C.
DEMCO 35 L.L.C., DEMCO II L.L.C., DEMCO IV L.L.C., DEMCO XIX L.L.C., Helm Investment
Company L.L.C., Keel Investments L.L.C., MWIP Development
71.07 UBS L.L.C. and PM Associates II L.L.C.
DEMCO 35 L.L.C., DEMCO II L.L.C., DEMCO IV L.L.C., DEMCO XIX L.L.C., Helm Investment
Company L.L.C., Keel Investments L.L.C., MWIP Development
71.08 UBS L.L.C. and PM Associates II L.L.C.
DEMCO 35 L.L.C., DEMCO II L.L.C., DEMCO IV L.L.C., DEMCO XIX L.L.C., Helm Investment
Company L.L.C., Keel Investments L.L.C., MWIP Development
71.09 UBS L.L.C. and PM Associates II L.L.C.
72 NCCI Worthington Xxxxxxx Columbus Associates, L.L.C.
73 EHY Old Mill Xxxxx, LLC/Shefflin Old Mill, LLC
73.01 EHY Old Mill Xxxxx, LLC/Shefflin Old Mill, LLC
73.02 EHY Old Mill Xxxxx, LLC/Shefflin Old Mill, LLC
73.03 EHY Old Mill Xxxxx, LLC/Shefflin Old Mill, LLC
74 EHY Fountains Title Holder, L.L.C.
75 JPMCB UCV Media Tech Center, LLC
76 UBS Oakmead Terrace LLC
77 JPMCB PK I Palomar Village SC LP
78 JPMCB Denver Hotel Teatro, LLC
79 NCCI Hampton Apts., Inc.
80 UBS Southbay Marketplace Holdings, LLC
81 NCCI Kapolei Marketplace, LLC and Kapolei-57, LLC
82 PNC MBS-Ashley House, LTD
The Pointe at Raiders Campus 22 LLC, The Pointe at Raiders Campus 21 LLC, The Pointe at
Raiders Campus 24 LLC, The Pointe at Raiders Campus 13 LLC, The Pointe at Raiders
Campus 15 LLC, The Pointe at Raiders Campus 16 LLC, The Pointe at Raiders Campus 17
83 NCCI LLC, The Pointe at Raiders Campus 18 LLC, The Pointe at Raiders Campus 19 LLC
84 NCCI Doheny V LLC, Brahms Sierra LLC
85 SOME II Temecula Creek Commercial Center, LLC
00 XXX XXXX Xxxxx Xxxxxxxxxx, LLC
87 PNC Case-Remington Limited Partnership
88 UBS Broadway Sky, LLC
89 NCCI PCCP CS LANDCO Tanque Verde, LLC
90 NCCI Inland Riverwoods, L.L.C.
91 NCCI W Hemet Holdings LLC
00 X. 00xx Xx. XX
92 UBS LLC
93 PNC Notohio, LLC
94 UBS DEA Jericho LLC
95 NCCI A-S Northwest Crossing Acquisition LLC
96 NCCI 455 Associates L.L.C.
97 UBS 260 West 36 Associates, LLC
98 UBS MOB Real Estate Holdings, LLC
99 NCCI Ashton Oaks Limited Partnership
100 JPMCB Park Place Apartments, LLP
101 NCCI MG Colonia Del Rio Apartments LLC
102 JPMCB PK III Canyon Square Plaza LP
103 PNC Aero Investments DL, LLC, Matt and Xxxxxxx Xxxxx, LLC, Metro Office, LLC
104 PNC Beechwood Lodging, LLC
105 UBS Yorktown 1031 LLC
105.01 UBS Yorktown 1031 LLC
105.02 UBS Yorktown 1031 LLC
105.03 UBS
106 JPMCB 000 Xxxxxx Xxxxxx LLC
000 XXXX Xxxxxxx Xxxxx Xxxx Apartments LLC
Sagebrush Stonegate Apartments, LLC, Xxxxxx Stonegate Apartments, LLC, X. Xxxxxxxx
Stonegate Apartments, LLC, X. Xxxxxxxx Apartments, LLC, Xxxxx Stonegate Apartments,
LLC, Xxxxxxxx Stonegate Apartments, LLC, Xxxxxxxx Stonegate Apartments, LLC, Xxxxxxx
Stonegate Apartments, LLC, Xxxx Stonegate Apartments, LLC, LIU Stonegate Apartments,
LLC, McLennan Stonegate Apartments, LLC, Ratzlaf Stonegate Apartments, LLC, Shimoda
Stonegate Apartments, LLC, XxXxxxxx Stonegate Apartments, LLC, Xxxxxx Stonegate
Apartments, LLC, Xxxxxx Stonegate Apartments, LLC, Ebbole Stonegate Apartments, LLC,
000 XXXX Xxxxxxx Xxxxxxxxx Xxxxxxxxxx, XXX, Xxxxxxx Stonegate Apartments, LLC
109 UBS Delray Square, LLC
110 NCCI MG Hacienda Del Rio Apartments LLC
111 NCCI GWR-B Tempe, LLC
112 JPMCB Brownstown Shopping Plaza LLC
113 NCCI One South King, LLC and South Xxxx XX, LLC
114 UBS 000 Xxxxxxxx Xxxxxxxxx Partners LLC
115 PNC Longford Plaza III, LLC
000 XXX Xxxx Xxxxxx Hospitality, Ltd.
117 JPMCB Chula Vista MOB, LLC
118 PNC MSF Niskayuna, LLC
119 UBS Maplewood 1031 LLC
119.01 UBS Maplewood 1031 LLC
119.02 UBS Maplewood 1031 LLC
119.03 UBS Maplewood 1031 LLC
120 PNC Xxxx XX, LLC
Direct Invest - 80 Lancaster, LLC, Direct Invest - 80 Lancaster 1, LLC, Direct Invest -
80 Lancaster 2, LLC, Direct Invest - Lancaster 3, LLC, Direct Invest - 80 Lancaster 4,
121 EHY LLC
FLSD Trust Associates II, LLC, B&G Ormond Beach Land Trust, Xxxx & Xxxxxxxxx LLC LVII,
122 UBS Xxxx & Xxxxxxxxx LLC LVIII
FLSD Trust Associates II, LLC, B&G Ormond Beach Land Trust, Xxxx & Xxxxxxxxx LLC LVII,
122.01 UBS Xxxx & Xxxxxxxxx LLC LVIII
FLSD Trust Associates II, LLC, B&G Ormond Beach Land Trust, Xxxx & Xxxxxxxxx LLC LVII,
122.02 UBS Xxxx & Xxxxxxxxx LLC LVIII
123 JPMCB Regency Seymour LLC
124 UBS 0000 Xxxxx Xxxxx, LLC
000 XXXX XX Xxxxxxxx Xxxxx, L.L.C.
126 PNC Alabama Hotel Properties, LLC
127 PNC 37 Hotel Munster, LLC
128 UBS Woodman 1031 PA Limited Partnership, Woodman 1031, LLC
128.01 UBS Woodman 1031 PA Limited Partnership, Woodman 1031, LLC
128.02 UBS Woodman 1031 PA Limited Partnership, Woodman 1031, LLC
129 JPMCB Xxxxxx Avenue Enterprises Limited Partnership
130 AIG 0000 Xxxxxxxxx Xxxx, LLC
131 NCCI DIWA, L.L.C.
132 NCCI ISIP, L.L.C.
133 UBS 000 X. Xxxxxxxxx Associates, L.P.
134 PNC Creekstone Tamiami West, LLC
135 EHY Guardian Fund II - Riverview LLC
136 UBS Racetrack Plaza LLC
137 UBS Xxxxx X'Xxxxxxx, LLC
138 NCCI CP Vineyard Center ONT LLC
000 XXX XXX Xxxxx Xxxx LLC
000 XXXX Xxxxxx Xxxxxx Xxxxxxx, LLC and Xx Xxxx-Xxxxxx, LLC
141 UBS Harvest 000 Xxxxxxxx Xxxxxxxxx, LLC
000 XXXX Xxxxxxxx Xxxxxxxxxx Xxxxxxx, LLC
144 JPMCB Mequon Joint Venture, LLC
145 EHY VR Legacy at Wesleyan Limited Partnership
146 JPMCB Durango & Elkhorn Bldg A, LLC
000 XXXX Xxxxx Xxxxx Xxxx Apartments, Ltd.
000 XXXX Xxxxxxxx Xxxxxxx LLC
149 JPMCB MANARGO LLC
150 UBS 166 Realty Associates LLC
151 PNC SGI-Walpole, LLC
TLG Springcreek Apartments, LLC, TLG Springcreek Apartments 2, LLC, TLG Springcreek
Apartments 3, LLC, TLG Springcreek Apartments 4, LLC, TLG Springcreek Apartments 5,
LLC, TLG Springcreek Apartments 6, LLC, TLG Springcreek Apartments 7, LLC, TLG
Springcreek Apartments 8, LLC, TLG Springcreek Apartments 9, LLC, TLG Springcreek
152 NCCI Apartments 10, LLC, TLG Springcreek Apartments 11, LLC
153 NCCI CP Simi Shops SV LLC
154 NCCI Wine Valley Inn, LLC
000 XXX 00xx Xxxxx, XXX, 00xx Xxxxxxx, LLC
155.01 EHY 59th Ferry, LLC, 42nd Ashland, LLC
155.02 EHY 59th Ferry, LLC, 42nd Ashland, LLC
156 PNC South Sierra Plaza, LLC
000 XXX Xxxx Xxxxx Xxxxxxx, LLC
158 UBS Heritage Rock Offices, Ltd.
159 JPMCB Xxxx XX Amherst NY, LLC
160 UBS Harvest 000 Xxx Xxxxxxx Xxxx, LLC
161 PNC Xxxx Road Industrial Leasing, LLC
162 UBS SCFW, LLC; JKFW, LLC; EKFW, LLC; FWJES, LLC; DSFW, LLC
163 NCCI Olde Towne Village LLC
164 JPMCB Greenhaven Investors, A California Limited Partnership
165 JPMCB Xxxxxx'x Landing #2-JP, LLC
166 JPMCB BC/TIBEX Plaza, L.P.
167 NCCI Netcom Hospitality LLC
168 UBS Sarasota Storage, L.P.
169 NCCI Xxxxx 825 Pine, LLC
170 JPMCB ParkBrooke Office Partners, L.P.
171 PNC Crossroads Hospitality Services, LLC
172 JPMCB Dallas Fitness Investors #1, L.P.
173 PNC 0000 Xxxx Xxxxx Xxxxxxxxx, LLC
174 UBS ACV RAD06 Three, LLC
174.01 UBS ACV RAD06 Three, LLC
174.02 UBS ACV RAD06 Three, LLC
175 PNC MSF Oakdale, LLC
176 PNC Watt-Fair Oaks Professional Centre, LLC
177 JPMCB Courtyard Apartments, LLC
178 PNC Xxxxx Manchester Enterprises, LLC
179 NCCI 8633 California LLC
180 JPMCB Waukesha Investors, LLC
181 UBS Rensor Realty Corp.
181.01 UBS Rensor Realty Corp.
181.02 UBS Rensor Realty Corp.
000 XXX Xxxxxxxxx Xxxxx Associates, LLC
184 PNC Rosewood VIII Real Estate Trust
185 PNC Xxxx-Xxxxxx Executive Plaza, LLC
186 JPMCB Tates Creek South Partnership, Ltd.
187 EHY Brighton Underground Garage II, LLC
188 PNC Desert Winds 44, Ltd.
189 UBS Cap Buncombe, LLC
190 UBS ACV RAD06 Two, LLC
190.01 UBS ACV RAD06 Two, LLC
190.02 UBS ACV RAD06 Two, LLC
000 XXXX Xxxxx Xxxxx Apartments LLC
192 JPMCB Del Rey Properties LLC
193 PNC PDL Investors III, LLC
194 UBS LRF Whippany Associates, L.L.C.
000 XXXX Xxxxxxxxx Xxxxx LLC
196 EHY Xxxxxx Retail Haleku'AI LLC
197 JPMCB Xxxxx'x Point Center Associates, LLC
198 UBS Harvest 336 South Service Road, LLC
199 JPMCB South 31st Street, LLC
200 PNC Aztec Square, LLC
201 UBS ACV RAD06 One, LLC
201.01 UBS
201.02 UBS
000 XXXX Xxxxxxxx Xxxx Co-op, Inc.
000 XXX Xxxxxxx Xxx Xxxx Financial, L.L.C.
204 PNC 000xx Xxxxxx Partners, LLC
205 UBS First Reservoir, LLC
206 PNC Chase Building Associates Limited Partnership II
207 PNC PDL Investors II, LLC
208 JPMCB Tab 250, Ltd.
209 NCCI 1001 Jefferson, LLC
210 UBS Belle Terre Associates, LLC
211 PNC Painted Post Lodging Associates, LLC
212 EHY Fog Properties, LLC
213 JPMCB Foxwood Village Apartments, L.L.C.
214 JPMCB Xxxxxxx Properties, Inc.
215 UBS Harvest 000 Xxxxxxx Xxxxxx, LLC
216 PNC Salem Crossing, LLC
217 UBS Xxxxx XX, LLC
218 JPMCB Mequon Joint Venture, LLC
219 NCCI Skylark MHP, L.P., Rancho San Xxxxxx Limited Partnership
220 PNC Xxxxx West Investments LLP
221 NCCI HFLP III/ Corona, LLC
222 NCCI Shri Krishna, Inc.
223 JPMCB Meadow Ridge Partners, L.L.C.
224 JPMCB 0000 Xxxxxx Xxxxxx Enterprises Limited Partnership
225 JPMCB Lara Springs, Ltd.
226 PNC Prime Properties Slate Ridge, LLC , Rockmill Investments, LLC
227 JPMCB Somerset Partners, LLC
228 JPMCB Amera Realty, Ltd.
229 JPMCB Xxxxxxx, L.L.C.
Loan # Property Address City State Zip Code County
---------- -------------------------------------------------------- -------------- ------- --------- -----------------
XXXXXX XXXXXXX XXXX XXXXX XXX XXXXXX
0 XXX XX 00 xxx Xxxxxxx Xxxx Xxxxxx XX 00000 Xxx
2 000 Xxxxxxxxx Xxxxxx Xxx Xxxx XX 00000 New York
0 Xxxxxxx Xxxxx Xxxxxx XX 00000 Fairfax
3.01 0000 Xxxxxxxx Xxxx Xxxxx Xxxxxx XX 00000 Fairfax
3.02 0000 Xxxxxxxx Xxxx Xxxxx Xxxxxx XX 00000 Fairfax
3.03 0000 Xxxxxxxx Xxxx Xxxxx Xxxxxx XX 00000 Fairfax
3.04 0000 Xxxxxxxx Xxxx Xxxxx Xxxxxx XX 00000 Fairfax
3.05 0000 Xxxxxxxx Xxxx Xxxxx Xxxxxx XX 00000 Fairfax
3.06 0000 Xxxxxxxx Xxxx Xxxxx Xxxxxx XX 00000 Fairfax
3.07 0000 Xxxxxxxx Xxxx Xxxxx Xxxxxx XX 00000 Fairfax
3.08 0000 Xxxxxxxx Xxxx Xxxxx Xxxxxx XX 00000 Fairfax
4 Various Xxxxxxxxxx XX 00000 Alexandria City
4.01 0000 Xxxx Xxxxxx Xxxxx Xxxxxxxxxx XX 00000 Alexandria City
4.02 0000 Xxxxxxxx Xxxx Xxxxxxxxxx XX 00000 Alexandria City
4.03 0000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Alexandria City
4.04 0000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Alexandria City
4.05 0000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Alexandria City
4.06 0000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Alexandria City
4.07 0000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Alexandria City
4.08 0000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Alexandria City
4.09 0000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Alexandria City
5 Various Various Various Various Various
5.01 000 Xxxxxxx Xxxx Xx Xxxxxx XX 00000 Xxxxxxxxxx
5.02 0000 Xxxxxxxxx Xxxxxxx Xxxxxxxxxx XX 00000 Franklin
5.03 0000 Xxxxxxxxx Xxxxx Xxxxxxx XX 00000 Shelby
5.04 0000 Xxxx Xxxxxx Xxxx Xxxxxxx XX 00000 Shelby
5.05 000 Xxxxxx Xxx Xxxxxxxx XX 00000 Yolo
5.06 0000 Xxxxxxxx Xxxxxx Xxxxxxx XX 00000 Shelby
5.07 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxx XX 00000 Yolo
5.08 0000 Xxxxxxx Xxxxx Xxxxxxxxx XX 00000 Franklin
5.09 0000 Xxxxxxx Xxxx Xxxxxxx XX 00000 Shelby
5.10 0000 Xxxxxxxxx Xxxxx Xxxxx Xxxx XX 00000 Franklin
6 0000 Xxxxxxxxxxx Xxxx Xxxxxxx XX 00000 Richmond
0 Xxxxxxx Xxxxxx xxx Xxxxx Xxxxxxx 000 at Kirkwood
0 Xxxxxxxxx Xxxxxxxx XX 00000 Tarrant
8 700, 730, 760, 000 Xxxxxxxxx 000xx Xxxxxx Xxxxx XX 00000 Miami-Dade
9 0000 Xxxxxx Xxxx Xxxxx Xxxxxxx Xxx XX 00000 Los Angeles
10 0000 Xxxxxxxx Xxxxx Xxxxxxxxxxx XX 00000 Fairfax
11 0000 Xxxxxxxxx Xxxxxxx Xxxxxx XX 00000 Collin
12 8055, 8075, 8125, 0000 Xxxxx Xxxxxx Xxxxxxx XX 00000 Xxxx
13 11411-11601 Xxxxxxxxx Xxxxxx Xxxx Xxxxxxxx XX 00000 Multnomah
14 00000 Xxxxx Xxxxxxxx Xxxxxxx Xxxxxx XX 00000 Jefferson
15 00000 Xxxxx Xxxxx Xxxxx Xxxxxx XX 00000 Fairfax
16 00 Xxxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Middlesex
17 00 Xxxxx Xxxxxx Xxxxxxxxx XX 00000 Middlesex
18 00 Xxxxxxxxxx Xxxxx Xxxxxx XX 00000 Worcester
19 Various Various Various Various Various
19.01 0000-0000 Xxxxxxxxxxxxxx Xxxx Xxxxxxxx XX 00000 Xxxxxx
19.02 000-000 Xxxx Xxxxxxxxx Xxxx Xxxxxxx XX 00000 DuPage
19.03 400 & 000 Xxxxxxxx Xxxxxx Xxxx Xxxxxxxxxxxx XX 00000 Greenville
19.04 0000 Xxxxxxx Xxxx Xxxx Xxxxxx XX 00000 St. Louis
19.05 0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxxx XX 00000 Jefferson
19.06 00000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxx XX 00000 Xxxxxxxx
19.07 0000 Xxxxxxxx Xxxxxxx Xxxx Xxxx Xxxxxxxxx XX 00000 Tippecanoe
19.08 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000 Hennepin
19.09 0000 Xxxxxxxxxx Xxxxxx Xxxx Xxxxxxxxx XX 00000 Xxxxxx
19.10 000-000 Xxxxx 000 Xxxxxxx Xxxxxxx XX 00000 Clay
Columbia
19.11 0000 Xxxxxxx Xxxxxx XX Xxxxxxx XX 00000 Anoka
19.12 0000 0xx Xxxxxx Xxxxxx XX 00000 Rock Island
19.13 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Racine
20 00000 Xxxxx Xxxxx Xxxxxxx Xxxxx XX 00000 Miami-Dade
21 0000 Xxx Xxxxxx, XX Xxxxxxxxxx XX 00000 Washington
22 0000 Xxxx Xxx Xxxxxxx Xxxx Xxxxx XX 00000 Guam
23 000 Xxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 Nassau
24 23600 - 00000 Xx Xxxx Xxxx Xxxx Xxxxxx XX 00000 Orange
25 Various Various FL Various Various
25.01 0000-0000 Xxxxxxxxx Xxxx Xxxxx Xxxxx XX 00000 Hillsborough
25.02 00000 Xxxxx Xxxx Xxxxxxxxx Xxxxx XX 00000 Hillsborough
25.03 0000 Xxxx Xxxxxx Xxxxxxx Xxxxxxxxx XX 00000 Manatee
25.04 0000 Xxxxxx Xxxxx Xxxxxxx Xxxxx XX 00000 Hillsborough
25.05 0000 Xxxxx Xxxxx Xxxxx Xxxxx Xxxx Xxxxx XX 00000 Hillsborough
25.06 0000 Xxxxxx Xxxxx Xxxxxxx Xxxxx XX 00000 Hillsborough
26 000 Xxxxxx Xxxxxx Xxxxxxxx XX 00000 Honolulu
27 00000 Xxxxxxxx Xxxxxxxxx Xxx Xxxxxxx XX 00000 Los Angeles
28 00 Xxxxx Xxxxxx Xxx Xxxx XX 00000 New York
29 00-000 Xxxxxxx Xxxxx Xxx Xxxx XX 00000 New York
30 000 Xxxxx Xxxx Xxxx Xxxxxxx XX 00000 Ventura
31 0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000 Philadelphia
32 Various Various Various Various Various
32.01 0000 Xxxxxxxx Xxxxxxx XX Xxxxxxx XX 00000 Xxxxxx
32.02 000 Xxxx X. Xxxxxx Xxxxx Xxxxxxx XX 00000 Xxxxxx
00000 XX Xxxxx 00
00.00 Xxxx Xxxx Xxxxxxx XX 00000 Xx Xxxxxx
32.04 0000 Xxxx Xxxxxxxx Xxxx Xxxx Xxxxxxx XX 00000 Norfolk
33 00000 Xxxx Xxxxxxxx Xxxxxx Xxx Xxxxxxxxxx XX 00000 San Bernardino
34 0000 Xxxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Riverside
35 0000 0xx Xxxxxx Xxxxx Xxxx XX 00000 Orange
36 0000 Xxxxx Xxxxx Xxxxxxxxx Xxx Xxxxx XX 00000 Xxxxx
37 000 Xxxxx Xxxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 Los Angeles
38 0000 Xxxxxxxxx Xxxxx Xxx Xxxxxxx XX 00000 Los Angeles
39 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxx XX 00000 Riverside
40 0000 Xxxxxx Xxxxxxxx Xxxxx Xxx Xxxxxxxxxx XX 00000 San Bernardino
41 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxx XX 00000 San Bernardino
42 0000 Xxxxxxxxx Xxxxxxxxx Xxx Xxxx XX 00000 Los Angeles
43 0000 Xxxx Xxxxxx Xxxxxxxxx Xxxxxx XX 00000 Dallas
44 00000 Xxxxxxx Xxxx Xxxxx Xxxxxxxxxx XX 00000 Xxxxxxxxxx
45 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Santa Xxxxx
46 0000 Xxxxxx Xxxxxx Xxxxxx Xxxxx XX 00000 Xxxx
47 0000 Xxxx Xxxxxx Xxxxxx Xxxxx XX 00000 Xxxx
48 14502 & 00000 Xxxxxxxxx Xxxxx Xxxxxx XX 00000 Prince Georges
49 0000 Xxxx Xxxxxxxx Xxxxxxx XX 00000 Dallas
50 0000 Xxxx 000xx Xxxxxx Xxxxxxxx Xxxx XX 00000 Xxxxxxx
51 0000-0000 Xxxxx Xxxx Xxxx Xxxxx XX 00000 New York
52 Vairous Various Various Various Various
52.01 000 X. Xxxxxx Xxxxxxx Xxxxx Xxxxxx XX 00000 Orange
52.02 0000 X. Xxxxxxxxx Xxxx Xxxxxxx XX 00000 Orange
52.03 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Guilford
52.04 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx XX 00000 Xxxx
52.05 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Xxxxx
52.06 0000 Xxxx Xxxxxxxx Xxxxx Xxxxxxx XX 00000 Hertford
53 Various San Francisco CA Various San Francisco
San
53.01 Xxx Xxxxxxxxx XX 00000 Francisco 0000 Xxxxx
Xxx
00.00 Xxx Xxxxxxxxx XX 00000 Francisco 000 Xxxxx
Xxx
00.00 Xxx Xxxxxxxxx XX 00000 Francisco 000 Xxxxx
Xxx
00.00 Xxx Xxxxxxxxx XX 00000 Francisco 815 O'Farrell
San 1085 South Van
53.05 Xxx Xxxxxxxxx XX 00000 Xxxxxxxxx Xxxx
San
53.06 Xxx Xxxxxxxxx XX 00000 Francisco 000 Xxxxx
Xxx
00.00 Xxx Xxxxxxxxx XX 00000 Francisco 626 Xxxxxx
San
53.08 Xxx Xxxxxxxxx XX 00000 Francisco 1705 Octavia
54 000 Xxxxxxxx Xxx Xxxx XX 00000 Xxx Xxxx
55 0000-0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx XX 00000 Maricopa
56 00000 Xxxxxx Xxxxx Xxxx Xxxxxxx XX 00000 Fairfax
57 Various Various FL Various Broward
Lauderdale
57.01 0000 XX 00xx Xxxxxx Xxxxx XX 00000 Broward
57.02 0000 XX 00xx Xxxxxx Xxxxxxx XX 00000 Broward
58 0000 Xxxxx Xxxxxxx Xxxxxx Xxx Xxxxx XX 00000 Xxxxx
4608-4750 Xxxxxx Xxxxx Road and 0000-0000 Xxxx 000
00 Xxxxxxxxx Xxxx Xxxxx XX 00000 Tarrant
60 0000 Xxxxxx Xxxxxxxxx Xxxxxxxx XX 00000 Los Angeles
61 Various Various Various Various Various
61.01 000 Xxxx 0000 Xxxxx Xxxxxx Xxxxxxxxxx XX 00000 Xxxxx
61.02 0000 Xxxxxxxxxx Xxxxx Xxxxxxxxxxxx XX 00000 Xxxxxxxxxx
61.03 000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx XX 00000 Franklin
61.04 000 Xxxxx Xxxxxxx Xxxx Xxxxxxxxx XX 00000 Shenandoah
61.05 00000 Xxxxxxxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000 Potter
61.06 000 Xxxxxxx Xxxxx Xxxxxxxxxxx XX 00000 Xxxxxx
61.07 0000 Xxxxx Xxxxxxx Xxxx Xxxx Xxxxxxx XX 00000 Xxxxxxxxxx
61.08 000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxxxxx XX 00000 Xxxx
61.09 000 Xxxxxxx Xxxx Xxxxxxxx XX 00000 Onondaga
61.10 0000 Xxxxxxxx Xxxxxxx Xxxxxxx XX 00000 Xxxxxx
61.11 0000 Xxxxxxx Xxxx Xxxxxxx XX 00000 Wood
61.12 #N/A #N/A #N/A #N/A #N/A
61.13 #N/A #N/A #N/A #N/A #N/A
61.14 #N/A #N/A #N/A #N/A #N/A
61.15 #N/A #N/A #N/A #N/A #N/A
61.16 #N/A #N/A #N/A #N/A #N/A
61.17 #N/A #N/A #N/A #N/A #N/A
61.18 #N/A #N/A #N/A #N/A #N/A
61.19 #N/A #N/A #N/A #N/A #N/A
61.20 #N/A #N/A #N/A #N/A #N/A
62 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxx XX 00000 Los Angeles
63 0000 Xxxx Xxxxxx Xxxx Xxxxxx XX 00000 Pima
64 00000 Xxx Xxxxxxx Xxxx Xxxx Xxxxx XX 00000 Henrico
65 Various Columbus OH Various Franklin
65.01 000 X. Xxxxx Xxxxxx Xxxxxxxx XX 00000 Franklin
65.02 000 X Xxxxxx Xxxx Xxxxxxxxx Xxxxxxxx XX 00000 Franklin
65.03 1030 & 0000 Xxxx Xxxxx Xxxxx Xxxxxxxx XX 00000 Franklin
65.04 000 Xxxxx Xxxxxx Xxxxxxxx XX 00000 Franklin
65.05 00 X Xxxxx Xxxxxx Xxxxxxxx XX 00000 Franklin
66 000 Xxxxx Xxxxxxxxxx Xxxxxxxxx Xxx Xxxx XX 00000 Santa Xxxxx
67 0 Xxxxxxxxxxx Xxxx Xxxxxxxxxx XX 00000 Madison
68 0000 Xxxxxxx Xxxxxx Xxxxx Xxxxx XX 00000 Miami-Dade
Northeast corner of East Xxxx Boulevard and North
00 Xxxxx Xxxxxxxxx Xxxxxxx XX 00000 Maricopa
70 0-00 Xxxx Xxxxxx Xxxxxxxx XX 00000 New York
71 Various Xxxxxxxx XX 00000 Xxxxx
71.01 00000 Xxxxxxx Xxxxx Xxxxxxxx XX 00000 Xxxxx
71.02 00000 Xxxx Xxxx Xxxxxxxx XX 00000 Xxxxx
71.03 00000 Xxxxxxx Xxxxx Xxxxxxxx XX 00000 Xxxxx
71.04 00000 Xxxxxxxx Xxxx Xxxxxxxxx Xxxxxxxx XX 00000 Xxxxx
71.05 00000 Xxxxxxxxxxx Xxxx Xxxxxxxx XX 00000 Xxxxx
71.06 00000 Xxxx Xxxxxx Xxxxxxxx XX 00000 Xxxxx
71.07 00000 Xxxx Xxxxxx Xxxxxxxx XX 00000 Xxxxx
71.08 00000 Xxx Xxxxxx Xxxxxxxx XX 00000 Xxxxx
71.09 00000 Xxxx Xxxxxx Xxxxxxxx XX 00000 Xxxxx
72 000 Xxxxxxxxxxxx Xxxxxxxxx Xxxxxxxxxxx XX 00000 Franklin
73 Xxxxxxx Xxxx Xxxx Xxxx XX 00000 Salt Lake
73.01 0000 Xxxxx 0000 Xxxx Xxxx Xxxx Xxxx XX 00000 Salt Lake
73.02 0000 Xxxxx 0000 Xxxx Xxxx Xxxx Xxxx XX 00000 Salt Lake
73.03 0000 Xxxxx 0000 Xxxx Xxxx Xxxx Xxxx XX 00000 Salt Lake
74 0000 Xxxxxxxxxx Xxxxxxx Xxxxxxx XX 00000 Orange
75 2702, 2705, 2709 & 0000 Xxxxx Xxxxxx Xxxxx Xxx Xxxxxxx XX 00000 Los Angeles
76 0000-0000 Xxxxxxx Xxxxxxx Xxxxxxxxx XX 00000 Santa Xxxxx
77 30520-30690 Xxxxxx Xxxxxxxxxx Xxxx Xxxxxxxx XX 00000 Riverside
78 0000 00xx Xxxxxx Xxxxxx XX 00000 Denver
79 0000 Xxxxx Xxxxxx Xxxxxxxxx Xxx Xxxxx XX 00000 Xxxxx
80 0000-0000 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxx XX 00000 San Diego
81 000 Xxxxxxxxxx Xxxxxxx Xxxxxxx XX 00000 Honolulu
82 0000 Xxxxx Xxxxx Xxxx Xxxx XX 00000 Fort Bend
83 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxxxxx XX 00000 Xxxxxxxxxx
84 000 Xxx Xxxxxxx Xxxx Xxxxxxx Xxxxx XX 00000 Mono
85 31021 - 00000 Xxx 00 Xxxxxxxx XX 00000 Riverside
86 0000 Xxxx Xxxxx Xxxxxxxxxx XX 00000 Charleston
87 0000 Xxxxxx Xxxxxx Xxxxxxxx XX 00000 Xxxxxxx
1691-1695
00 Xxxxxxxx Xxx Xxxx XX 00000 New York
89 0000 Xxxx Xxxxxx Xxxxx Xxxx Xxxxxx XX 00000 Pima
90 X00 X00000 Xxxxxxxxx Xxxxx Xxxxxxxx XX 00000 Waukesha
91 0000-0000 Xxxx Xxxxxxx Xxxxxx Xxxxx XX 00000 Riverside
92 00 Xxxx 00xx Xxxxxx Xxx Xxx XX 00000 New York
93 0000 Xxxx Xxxx Xxxx Xxxxxx XX 00000 Onondaga
94 125 and 000 Xxxxxxx Xxxxxxxx Xxxxxxx XX 00000 Nassau
95 00000 Xxxxxxxxx Xxxxxxx Xxxxxxx XX 00000 Xxxxxx
96 000 Xxxx Xxxx Xxxxxx Xxxxxxx XX 00000 Xxxxx
97 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 New York
00 Xxxxxxxxx Xxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxx Xxxx XX 00000 Grand Traverse
99 0000 Xxxxxxxxxxx Xxxxx Xxxxxxx-Xxxxx XX 00000 Forsyth
100 0000-0000 Xxxx Xxxxx Xxxx Xxxxxxxxxx XX 00000 Rock
101 0000 Xxxxx Xxx Xxxxxxx Xxxxxx XX 00000 Pima
102 18507 - 00000 Xxxxxxx Xxxxxx Xxxx Xxxxx Xxxxxxx XX 00000 Los Angeles
103 00000 Xxxxx 00xx Xxxxxx Xxxxxxx XX 00000 Maricopa
104 0000 Xxxxxx Xxxxx Xxxxxx Xxxxxxx XX 00000 Cuyahoga
105 Various Various Various Various Various
105.01 000 Xxxx Xxxxxx Xxxxxxxx XX 00000 Clay
105.02 000 Xxxx Xxxxxxxx Xxxxxx Xxxx XX 00000 Wake
105.03
106 000 Xxxxxx Xxxxxx Xxx Xxxxxxxxx XX 00000 San Francisco
107 0000 Xxxx 00xx Xxxxxx Xxxxxxxxxxxx XX 00000 Lake
108 000 Xxxx Xxxxxx Xxxx Xxxxxxxxxxx XX 00000 Xxxxx
109 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxx Xxxxx XX 00000 Palm Beach
110 0000 Xxxxx Xxx Xxxxxxx Xxxxxx XX 00000 Pima
111 0000 Xxxxx Xxxxxxx Xxxxx Xxxxx XX 00000 Maricopa
112 00000 Xxxx Xxxx Xxxxxxxxxx XX 00000 Xxxxx
113 00 Xxxxx Xxxx Xxxxxx Xxxxxxxx XX 00000 Honolulu
114 000-000 Xxxxxxxx Xxxxxxxxx Xxxxx XX 00000 New York
115 0000-0000 X. Xxxx Xxxxxxx Xxxx Xxx Xxxxx XX 00000 Xxxxx
116 000 Xxxx Xxxx Xxxxxx Xxxxxxx XX 00000 Midland
117 000 0xx Xxxxxx Xxxxx Xxxxx XX 00000 San Diego
118 0000 Xxxxxxx Xxxx Xxxxxxxxx XX 00000 Schenectady
119 Various Various Various Various Various
119.01 000 Xxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxx XX 00000 Fremont
119.02 Xxxxxxxxx Xxxxxx xx Xxxxxxxx xxx 000xx Xxxxxx Xxxxx Xxxxx XX 00000 Xxxx
Xxxxxxxxx Xxxxxx xx Xxxxxx Xxxxxx & Western
119.03 Xxxxxx Xxxxxx XX 00000 Audrain
120 0000 Xxxx Xxxxxxx Xxxxx Xxxxx Xxxxxxx XX 00000 Tarrant
121 00 Xxxx Xxxxxxxxx Xxxxxx Xxxxx XX 00000 Xxxxxxx
000 Xxxxxxx Xxxxxx Xxxxx XX 00000 Volusia
122.01 000 Xxxxx Xxxxxxxx Xxx Xxxxxx Xxxxx XX 00000 Volusia
122.02 000 Xxxxx Xxxxxxxx Xxx Xxxxxx Xxxxx XX 00000 Volusia
123 1224 and 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxx XX 00000 Xxxxxxx
124 0000 Xxxxx Xxxxx Xxx Xxxxx XX 00000 Xxxxx
125 0000-0000 Xxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000 Winnebago
126 0000 Xxxxxxxxx Xxxxxxx Xxxxxxxxxx XX 00000 Montgomery
127 0000 Xxxxxxx Xxxxxx Xxxxxxx XX 00000 Lake
128 Various Various Various Various Various
128.01 000 Xxxx 0xx Xxxxxx Xxxxxxxxx XX 00000 Allegheny
128.02 0000 Xxxxxx Xxxx Xxxx Xxxxxxxx XX 00000 Florence
129 2100 and 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxx XX 00000 Orange
130 0000 Xxxxxxxxx Xxxx Xxxxxxxxxxx XX 00000 Fairfax
131 0000 Xxxx Xxxx Xxxxx Xxxxxxx XX 00000 Macon
132 0000 Xxxx Xxxxxxxxx Xxxxxxx XX 00000 Macon
133 000 Xxxx Xxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Montgomery
134 00000 XX 0xx Xxxxxx Xxxxx XX 00000 Dade
135 0000 Xxxx Xxxx Xxxx Xxxx Xxxx XX 00000 Prince George's
136 000 Xxxxx Xxxxxxxxx Xxxx Xxxxxxxxx XX 00000 Xxxxx
137 180 - 000 X'Xxxxxxx Xxxxxx Xxx Xxxxxxxxx XX 00000 San Francisco
138 0000-0000 Xxxx 0xx Xxxxxx Xxxxxxx XX 00000 San Bernardino
139 000 Xxxxx Xxxx Xxxxxx XX 00000 Fairfax
140 17333 & 00000 Xxxxxx Xxxxxxxxx Xxxxxxx XX 00000 San Bernardino
141 000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 Suffolk
143 0000 Xxxx Xxxxx Xxxxxx Xxx Xxxxx XX 00000 Xxxxx
144 0000-0000 Xxxx Xxxxxxxxx Xxxxx Xxxxxx XX 00000 Ozaukee
145 0000 Xxxxxxxx Xxxxx Xxxxx XX 00000 Xxxx
146 0000 Xxxxx Xxxxxxx Xxxxx Xxx Xxxxx XX 00000 Xxxxx
147 0000 Xxxxxxxx Xxxxxxx Xxxxxxxxxxx XX 00000 Xxxx
148 000 Xxxxxxxxx Xxxxx and 0-00 Xxxxxxxxxxx Xxxx Xxxxx XX 00000 Tuscarawas
149 0000 XxXxx Xxxx Xxxxxxxx XX 00000 Xxxxxx
150 000 Xxxx 000xx Xxxxxx Xxx Xxx XX 00000 New York
151 000 Xxxxxxxxxx Xxxxxxx Xxxxxxx XX 00000 Norfolk
152 0000 Xxxxxxxxxx Xxxx Xxxxxx XX 00000 Xxxxxx
153 0000-0000 Xxxxxxx Xxxxxx Xxxx Xxxxxx XX 00000 Ventura
154 0000 Xxxxxxxxxx Xxxxx Xxxxxxx XX 00000 Santa Xxxxxxx
155 Various Various IL Various Various
155.01 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx XX 00000 Xxxx
155.02 4 South 000 Xxxxx 00 Xxxxxxxxxx XX 00000 DuPage
156 00000-00 Xxxxxx Xxxxxx Xxxxxxx XX 00000 San Bernardino
157 4350, 4370 & 0000 Xxxx Xxxxxx Xxx Xxxxx XX 00000 San Diego
158 0000-0000 Xxxx Xxxxxxxxxx 00 Xxxxxxxxx XX 00000 Tarrant
159 000 Xxxxx Xxxx Xxxxxxx XX 00000 Erie
160 000 Xxx Xxxxxxx Xxxx Xxxxxxxx XX 00000 Suffolk
Sterling
161 0000 Xxxx Xxxx Xxxxxxx XX 00000 Macomb
162 0000 Xxxxxxx Xxxxxx & 0000 Xxxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 Los Angeles
163 000 Xxxxxx Xxxxx Xxxxxxxxxxx XX 00000 Xxxxx
164 0000 Xxxxxxxxxx Xxxxx Xxxxxxxxxx XX 00000 Sacramento
165 0000 Xxxxxx'x Xxxxxxx Xxxxx Xxxxxxxxx XX 00000 Kalamazoo
166 000-000 Xxxxx Xxxx Xxxxxx Xxxxxx XX 00000 Tarrant
167 0000 Xxxxxxxxxxxx Xxxx Xxxxxx XX 00000 Durham
168 000 Xxxxxxxxx Xxxx Xxxxxxxx XX 00000 Sarasota
169 825 - 000 Xxxx Xxxxxx Xxx Xxxxxxxxx XX 00000 San Francisco
170 000 XxxxXxxxxx Xxxxx Xxxxxxxxx XX 00000 Cherokee
171 00 Xxxxx X. Xxxxxx Xxxxx Xxxxxxxx XX 00000 Chatham
172 0000 Xxxx Xxxxxxxxxx 00 Xxxxx Xxxxxxx XX 00000 Tarrant
173 0000 Xxxx Xxxxx Xxxx Xxxx Xxxxx XX 00000 Los Angeles
174 Various Various Various Various Various
174.01 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxxxxx XX 00000 Philadelphia
174.02 00 Xxxxx Xxxx Xxxxxx Xxxx Xxxxxxx XX 00000 Ocean
175 000 Xxxx Xxxxxx Xxxxxxx XX 00000 Stanislaus
176 000 Xxxx Xxxxxx and 0000 Xxxx Xxxx Xxxxxxxxx Xxxxxxxxxx XX 00000 Sacramento
177 0000 Xxxxx Xxxxx Xxxxxxxxx XX 00000 Xxxxx
178 0000 Xxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Xxxxxxxx
179 0000 Xxxxxxxxxx Xxxxxx Xxxxx Xxxx XX 00000 Los Angeles
180 1900 & 0000 Xxxxxxxx Xxxx Xxxxxxxx XX 00000 Waukesha
181 Various Various FL Various Various
181.01 000-000 Xxx Xxxx Xxxxxxxxx Xxxx Xxxxxxxxxx XX 00000 Broward
181.02 000 Xxxxx Xxxxxx Xxxx Xxxx Xxxxx XX 00000 Palm Beach
182 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxx XX 00000 Orange
184 00-00 Xxxxx Xxxxxx Xxxxxxxxx XX 00000 Middlesex
185 8785 & 0000 Xxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000 Sacramento
186 0000-0000 Xxxxx Xxxxx Xxxxxxxxx XX 00000 Fayette
187 00 Xxxxxx Xxxxx Xxxx and 00 Xxxxxx Xxxxx Xxxx Xxxxxxxx XX 00000 Kings
188 000-000 Xxxxxx Xxxxx Xxx Xxxxxxxx XX 00000 Xxxxx
189 0000 Xxxx Xxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000 Greenville
190 Various Various Various Various Various
190.01 000 Xxxxx Xxx Xxxxxxxxxx XX 00000 Xxxxx
190.02 000 Xxxx Xxxx Xxxxxx Xxxxxxxxxx XX 00000 Xxx Xxxxxx Xxxxxx
191 0000 Xxxxxxxxx Xxxx Xxx Xxxxxx XX 00000 Xxxxx
192 000 Xxxxx Xxxx Xxxxxx Xxxxxxx XX 00000 Los Angeles
193 0000 Xxxxx Xxxxxxxx Xxxxx XX 00000 Tulsa
194 0000 Xxxxxxxx Xxxx Xxxxxx XX 00000 Dallas
195 000 Xxxxxxx Xxxxxxxxx Xxxxxxxxxxx XX 00000 Xxxxx
196 00000 XX 0000 Xxxx Xxxxxx XX 00000 Xxxxxx
197 0000 Xxxx Xxxxxx Xxxxxxxxx Xxxxxx XX 00000 Xxxxxx
198 000 Xxxxx Xxxxxxx Xxxx Xxxxxxxx XX 00000 Suffolk
199 0000 00xx Xxxxxx Xxxxx Xxxxxxxxx XX 00000 Arlington
200 0000 Xxxx Xxxxxx Xxxxxx Xxxx Xxxxxxx XX 00000 Maricopa
000 Xxxxxxx Xxxxxxxxxx XX Various Jefferson
201.01 0000 Xxxxx Xxxx Xxxxxxxxxx XX 00000 Jefferson
201.02 0000 Xxxxxxxxxxxxxx Xxxx Xxxxxxxxxx XX 00000 Jefferson
202 0000 000xx Xxxxxx Xxxxx Xxxxx XX 00000 Pinellas
203 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx XX 00000 Xxxx
204 10730 - 00000 Xxxx Xxxxx Xxxxxxx Xx Xxxxxxxx XX 00000 Maricopa
000 Xxx Xxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Providence
206 00 Xxxxx Xxxxxx Xxxxxxxxx XX 00000 Worcester
207 0000 Xxxx 00xx Xxxxxx Xxxxx XX 00000 Tulsa
208 000-000 Xxxxx Xxxxxxx Xxxxxxx Xxxx Xxxxxxxxxx XX 00000 Broward
209 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Washington
210 0000 Xxxx Xxxxx Xxxxxxx Xxxx Xxxxx XX 00000 Flagler
211 0000 Xxxxxxx Xxxxxxx Xxxxxxx Xxxx XX 00000 Steuben
212 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxx XX 00000 Xxxx
213 0000 Xxxx Xxxxx Xxxxxxxx XX 00000 Winnebago
214 000 Xxxx 00 Xxxx Xxxx Xxxxxxx Xxxxxxx XX 00000 Oakland
215 000 Xxxxxxx Xxxxxx Xxxxxx Xxxx XX 00000 Nassau
216 00 Xxxxx Xxxx Xxxxxx XX 00000 Union
217 000 Xxxxxxxxx Xxxx Xxxx Xxx'x Xxxxxx XX 00000 Jackson
218 7301 Xxxx Xxxx Road, 0000 Xxxxx Xxxxxx Xxxx Xxxxxxxxx XX 00000 Milwaukee
219 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Los Angeles
220 0000-00 X. Xxxxxxxx Xxxx Xxxxxxx XX 00000 Maricopa
221 000 Xxxxxxxx Xxxxxx Xxxxxx XX 00000 Riverside
222 0000 Xxxxxxx Xxxxx Xxxxxx XX 00000 Union
223 0000 Xxxxx XxXxxxxx Xxxx Xxxxxxx XX 00000 Madison
224 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxx XX 00000 Orange
225 00000 Xxxxx Xxxx 00xx Xxxxxx Xxxxx Xxxxxxx XX 00000 Broward
226 0000 Xxxxxxxxx Xxxxxxxxxxxx Xxxx Xxxxxxxxxxxx XX 00000 Franklin
227 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxx XX 00000 Winnebago
228 0000-0000 Xxxxx Xxxxxxxxxx Xxxxx Xxxxx Xxxxxxx XX 00000 Broward
229 0000 Xxxxxxx Xxxxx Xxxxxxxx XX 00000 Winnebago
Interest Net Mortgage Cutoff
Loan # Size Measure Rate (%) Interest Rate Original Balance Balance Term Rem. Term
----------- ------- --------------- ------------ ----------------- ---------------- ------------- ---------- -------------
SEQNUM SIZE MEASURE MORT_RATE NET_MORT_RATE ORIG_BAL CUT_OFF_BAL LOAN_TERM REM_LOAN_TERM
1 834859 Square Feet 5.83000 5.80961 230,000,000 230,000,000 120 117
2 1030309 Square Feet 5.49300 5.47261 225,000,000 225,000,000 120 120
3 2566783 Square Feet 5.74300 5.72261 203,400,000 203,400,000 120 119
3.01 473350 Square Feet 5.74300 5.74300 40,410,000 40,410,000 120 119
3.02 402824 Square Feet 5.74300 5.74300 30,240,000 30,240,000 120 119
3.03 308533 Square Feet 5.74300 5.74300 24,570,000 24,570,000 120 119
3.04 298468 Square Feet 5.74300 5.74300 23,610,000 23,610,000 120 119
3.05 275492 Square Feet 5.74300 5.74300 21,990,000 21,990,000 120 119
3.06 267651 Square Feet 5.74300 5.74300 21,150,000 21,150,000 120 119
3.07 270679 Square Feet 5.74300 5.74300 21,000,000 21,000,000 120 119
3.08 269786 Square Feet 5.74300 5.74300 20,430,000 20,430,000 120 119
4 839469 Square Feet 5.32300 5.30261 203,250,000 203,250,000 120 120
4.01 216482 Square Feet 5.32300 5.32300 64,392,204 64,392,204 120 120
4.02 199005 Square Feet 5.32300 5.32300 44,942,814 44,942,814 120 120
4.03 119088 Square Feet 5.32300 5.32300 34,404,499 34,404,499 120 120
4.04 96411 Square Feet 5.32300 5.32300 20,379,241 20,379,241 120 120
4.05 52761 Square Feet 5.32300 5.32300 9,530,976 9,530,976 120 120
4.06 51750 Square Feet 5.32300 5.32300 9,221,025 9,221,025 120 120
4.07 52716 Square Feet 5.32300 5.32300 8,368,662 8,368,662 120 120
4.08 36276 Square Feet 5.32300 5.32300 7,206,347 7,206,347 120 120
4.09 14980 Square Feet 5.32300 5.32300 4,804,232 4,804,232 120 120
5 5003066 Square Feet 5.59600 5.57561 186,000,000 186,000,000 120 118
5.01 770000 Square Feet 5.59600 5.59600 34,926,587 34,926,587 120 118
5.02 766571 Square Feet 5.59600 5.59600 24,401,001 24,401,001 120 118
5.03 625000 Square Feet 5.59600 5.59600 22,953,874 22,953,874 120 118
5.04 400000 Square Feet 5.59600 5.59600 17,394,239 17,394,239 120 118
5.05 400000 Square Feet 5.59600 5.59600 17,188,803 17,188,803 120 118
5.06 550000 Square Feet 5.59600 5.59600 16,943,477 16,943,477 120 118
5.07 400000 Square Feet 5.59600 5.59600 16,628,001 16,628,001 120 118
5.08 344220 Square Feet 5.59600 5.59600 13,949,378 13,949,378 120 118
5.09 337655 Square Feet 5.59600 5.59600 12,951,968 12,951,968 120 118
5.10 409620 Square Feet 5.59600 5.59600 8,662,671 8,662,671 120 118
6 470717 Square Feet 5.48800 5.46761 175,000,000 175,000,000 60 56
7 1874975 Square Feet 6.10300 6.08261 140,000,000 140,000,000 84 81
8 283196 Square Feet 5.46600 5.44561 33,600,000 33,600,000 72 72
9 134858 Square Feet 5.46600 5.44561 22,800,000 22,800,000 84 84
10 251178 Square Feet 5.46600 5.44561 17,400,000 17,400,000 72 72
11 240 Units 5.46600 5.44561 13,500,000 13,500,000 72 72
12 528856 Square Feet 5.46600 5.44561 12,360,000 12,360,000 72 72
13 267914 Square Feet 5.46600 5.44561 11,250,000 11,250,000 60 60
14 261825 Square Feet 5.46600 5.44561 9,240,000 9,240,000 60 60
15 71953 Square Feet 5.46600 5.44561 6,660,000 6,660,000 84 84
16 153641 Square Feet 5.46600 5.44561 6,060,000 6,060,000 84 84
17 70600 Square Feet 5.46600 5.44561 3,120,000 3,120,000 60 60
18 51200 Square Feet 5.46600 5.44561 2,280,000 2,280,000 72 72
19 2263247 Square Feet 5.38700 5.36661 129,235,662 129,235,662 84 80
19.01 564279 Square Feet 5.38700 5.38700 29,150,000 29,150,000 84 80
19.02 239892 Square Feet 5.38700 5.38700 16,870,000 16,870,000 84 80
19.03 131002 Square Feet 5.38700 5.38700 12,400,000 12,400,000 84 80
19.04 182969 Square Feet 5.38700 5.38700 11,480,000 11,480,000 84 80
19.05 164367 Square Feet 5.38700 5.38700 10,080,000 10,080,000 84 80
19.06 130774 Square Feet 5.38700 5.38700 8,380,000 8,380,000 84 80
19.07 118436 Square Feet 5.38700 5.38700 6,850,000 6,850,000 84 80
19.08 135031 Square Feet 5.38700 5.38700 6,815,662 6,815,662 84 80
19.09 76894 Square Feet 5.38700 5.38700 6,090,000 6,090,000 84 80
19.10 124858 Square Feet 5.38700 5.38700 5,740,000 5,740,000 84 80
19.11 126665 Square Feet 5.38700 5.38700 5,200,000 5,200,000 84 80
19.12 98197 Square Feet 5.38700 5.38700 5,180,000 5,180,000 84 80
19.13 169883 Square Feet 5.38700 5.38700 5,000,000 5,000,000 84 80
20 663948 Square Feet 6.10450 6.08411 120,500,000 120,500,000 60 58
21 216192 Square Feet 5.67500 5.65461 105,000,000 105,000,000 60 60
22 600 Rooms 6.98000 6.95961 105,000,000 105,000,000 120 120
23 618 Rooms 6.11850 6.09811 103,500,000 103,500,000 120 119
24 278461 Square Feet 6.53200 6.51161 100,000,000 100,000,000 120 118
25 691024 Square Feet 5.61600 5.59561 96,240,000 96,240,000 120 120
25.01 171448 Square Feet 5.61600 5.61600 25,600,000 25,600,000 120 120
25.02 164752 Square Feet 5.61600 5.61600 23,760,000 23,760,000 120 120
25.03 101312 Square Feet 5.61600 5.61600 16,400,000 16,400,000 120 120
25.04 125390 Square Feet 5.61600 5.61600 16,000,000 16,000,000 120 120
25.05 68447 Square Feet 5.61600 5.61600 8,320,000 8,320,000 120 120
25.06 59675 Square Feet 5.61600 5.61600 6,160,000 6,160,000 120 120
26 355802 Square Feet 5.86000 5.83961 95,000,000 95,000,000 120 116
27 344673 Square Feet 5.40000 5.37961 90,000,000 90,000,000 120 118
28 392989 Square Feet 5.29250 5.27211 86,000,000 86,000,000 84 82
29 186445 Square Feet 6.11841 6.09802 82,000,000 82,000,000 120 119
30 411 Units 6.58000 6.55961 72,000,000 72,000,000 60 59
31 507180 Square Feet 5.82800 5.80761 70,000,000 70,000,000 60 58
32 736220 Square Feet 5.43350 5.41311 65,700,000 65,700,000 120 117
32.01 262835 Square Feet 5.43350 5.43350 21,000,000 21,000,000 120 117
32.02 158714 Square Feet 5.43350 5.43350 20,000,000 20,000,000 120 117
32.03 208466 Square Feet 5.43350 5.43350 18,000,000 18,000,000 120 117
32.04 106205 Square Feet 5.43350 5.43350 6,700,000 6,700,000 120 117
33 220 Units 5.59000 5.56961 13,270,900 13,200,958 120 115
34 140 Units 5.59000 5.56961 12,361,900 12,296,749 120 115
35 100 Units 5.59000 5.56961 8,441,400 8,396,911 120 115
36 64 Units 5.64000 5.61961 4,428,000 4,404,894 120 115
37 57 Units 5.59000 5.56961 3,960,900 3,940,025 120 115
38 30748 Square Feet 5.59000 5.56961 3,900,400 3,879,844 120 115
39 56 Units 5.59000 5.56961 3,258,700 3,241,526 120 115
40 44 Units 5.59000 5.56961 3,181,000 3,164,235 120 115
41 40 Units 5.64000 5.61961 2,839,000 2,824,185 120 115
42 36 Units 5.59000 5.56961 2,715,900 2,701,586 120 115
43 127 Units 5.59000 5.56961 2,200,000 2,188,405 120 115
44 768 Units 5.48100 5.46061 65,500,000 65,500,000 120 119
45 410 Units 5.47700 5.45661 65,000,000 65,000,000 60 58
46 516266 Square Feet 5.71710 5.69671 29,824,000 29,824,000 84 84
47 314329 Square Feet 5.71710 5.69671 12,252,000 12,252,000 72 72
48 143464 Square Feet 5.71710 5.69671 11,612,000 11,612,000 72 72
49 54000 Square Feet 5.71710 5.69671 1,405,000 1,405,000 60 60
50 651648 Square Feet 5.90000 5.87961 55,000,000 55,000,000 60 59
51 702 Units 5.53650 5.51611 52,000,000 52,000,000 120 120
52 817497 Square Feet 5.86600 5.84561 49,600,000 49,600,000 120 118
52.01 171557 Square Feet 5.86600 5.86600 13,422,578 13,422,578 120 120
52.02 136188 Square Feet 5.86600 5.86600 9,927,942 9,927,942 120 120
52.03 153428 Square Feet 5.86600 5.86600 9,491,113 9,491,113 120 120
52.04 133345 Square Feet 5.86600 5.86600 8,418,895 8,418,895 120 120
52.05 118120 Square Feet 5.86600 5.86600 4,527,142 4,527,142 120 120
52.06 104859 Square Feet 5.86600 5.86600 3,812,330 3,812,330 120 120
53 291 Units 5.99000 5.96961 47,000,000 47,000,000 60 55
53.01 Units 00006 5.99000 16738596.49123 16,738,596 60 55 40827
53.02 Units 00006 5.99000 5854385.96491 5,854,386 60 55 40827
53.03 Units 00006 5.99000 4836052.63158 4,836,053 60 55 40827
53.04 Units 00006 5.99000 4836052.63158 4,836,053 60 55 40827
53.05 Units 00006 5.99000 4695877.19298 4,695,877 60 55 40827
53.06 Units 00006 5.99000 4349561.40351 4,349,561 60 55 40827
53.07 Units 00006 5.99000 4122807.01754 4,122,807 60 55 40827
53.08 Units 00006 5.99000 1566666.66667 1,566,667 60 55 40827
54 93600 Square Feet 5.52000 5.49961 46,000,000 46,000,000 120 120
55 269541 Square Feet 5.32750 5.30711 45,000,000 45,000,000 60 59
56 177786 Square Feet 5.52000 5.49961 44,300,000 44,300,000 120 119
57 625 Units 5.99000 5.96961 43,000,000 43,000,000 120 117
57.01 315 Units 5.99000 5.99000 21,960,000 21,960,000 120 117
57.02 310 Units 5.99000 5.99000 21,040,000 21,040,000 120 117
58 234306 Square Feet 5.49890 5.45851 42,800,000 42,800,000 120 120
59 374406 Square Feet 5.65600 5.61561 41,500,000 41,500,000 120 118
60 572810 Square Feet 5.54600 5.51561 40,000,000 40,000,000 60 57
61 5489325 Square Feet 5.39600 5.37561 35,000,000 35,000,000 109 107
61.01 455227 Square Feet 5.39600 5.39600 4,384,000 4,384,000 109 107
61.02 226423 Square Feet 5.39600 5.39600 3,240,000 3,240,000 109 107
61.03 299776 Square Feet 5.39600 5.39600 2,941,400 2,941,400 109 107
61.04 243170 Square Feet 5.39600 5.39600 2,760,000 2,760,000 109 107
61.05 163796 Square Feet 5.39600 5.39600 2,494,800 2,494,800 109 107
61.06 252419 Square Feet 5.39600 5.39600 2,186,800 2,186,800 109 107
61.07 252075 Square Feet 5.39600 5.39600 1,909,600 1,909,600 109 107
61.08 270772 Square Feet 5.39600 5.39600 1,886,500 1,886,500 109 107
61.09 573183 Square Feet 5.39600 5.39600 1,617,000 1,617,000 109 107
61.10 431369 Square Feet 5.39600 5.39600 1,520,000 1,520,000 109 107
61.11 127260 Square Feet 5.39600 5.39600 1,493,800 1,493,800 109 107
61.12 #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.13 #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.14 #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.15 #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.16 #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.17 #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.18 #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.19 #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.20 #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A
62 394385 Square Feet 5.54470 5.52431 35,000,000 35,000,000 120 120
63 310 Units 5.94000 5.86961 32,937,000 32,937,000 120 120
64 312 Units 5.75000 5.72961 30,850,000 30,850,000 120 120
65 371702 Square Feet 5.67000 5.63961 30,880,000 30,781,211 120 118
65.01 132301 Square Feet 5.67000 5.67000 12,160,000 12,121,099 120 118
65.02 142246 Square Feet 5.67000 5.67000 11,440,000 11,403,402 120 118
65.03 58450 Square Feet 5.67000 5.67000 4,160,000 4,146,692 120 118
65.04 25658 Square Feet 5.67000 5.67000 2,240,000 2,232,834 120 118
65.05 13047 Square Feet 5.67000 5.67000 880,000 877,185 120 118
66 100841 Square Feet 5.93600 5.91561 30,500,000 30,445,495 84 83
67 290 Rooms 5.86000 5.83961 30,000,000 30,000,000 120 120
68 151 Rooms 6.03000 6.00961 30,000,000 30,000,000 60 59
69 294820 Square Feet 5.38500 5.36461 30,000,000 30,000,000 60 60
70 554610 Square Feet 5.53500 5.51461 30,000,000 30,000,000 120 120
71 365020 Square Feet 5.79500 5.77461 28,525,000 28,525,000 120 118
71.01 87100 Square Feet 5.79500 5.79500 7,929,117 7,929,117 120 118
71.02 50025 Square Feet 5.79500 5.79500 5,946,838 5,946,838 120 118
71.03 36750 Square Feet 5.79500 5.79500 3,726,685 3,726,685 120 118
71.04 49895 Square Feet 5.79500 5.79500 3,409,521 3,409,521 120 118
71.05 63250 Square Feet 5.79500 5.79500 3,250,938 3,250,938 120 118
71.06 40450 Square Feet 5.79500 5.79500 1,942,634 1,942,634 120 118
71.07 15000 Square Feet 5.79500 5.79500 1,086,289 1,086,289 120 118
71.08 16400 Square Feet 5.79500 5.79500 626,400 626,400 120 118
71.09 6150 Square Feet 5.79500 5.79500 606,578 606,578 120 118
72 528 Units 5.86000 5.83961 27,000,000 27,000,000 120 118
73 131808 Square Feet 5.62200 5.60161 26,650,000 26,650,000 120 120
73.01 60621 Square Feet 5.62200 5.62200 10,884,084 10,884,084 120 120
73.02 36501 Square Feet 5.62200 5.62200 8,883,333 8,883,333 120 120
73.03 34686 Square Feet 5.62200 5.62200 6,882,583 6,882,583 120 120
74 552 Units 5.46000 5.43961 26,000,000 26,000,000 60 58
75 187534 Square Feet 5.67400 5.65361 25,000,000 25,000,000 60 58
76 134228 Square Feet 5.80200 5.78161 24,800,000 24,800,000 120 119
77 139130 Square Feet 5.44550 5.42511 24,600,000 24,600,000 120 116
78 111 Rooms 5.49950 5.47911 24,225,000 24,225,000 60 58
79 492 Units 5.59000 5.56961 23,565,900 23,441,700 120 115
80 132873 Square Feet 5.47700 5.45661 23,000,000 23,000,000 120 119
81 64106 Square Feet 6.00000 5.96461 22,560,000 22,560,000 120 120
82 276 Units 5.55000 5.49961 21,500,000 21,500,000 120 119
83 216 Units 5.79000 5.76961 21,120,000 21,120,000 120 119
84 75529 Square Feet 6.25000 6.22961 19,500,000 19,500,000 60 59
85 67076 Square Feet 5.87000 5.84961 19,500,000 19,500,000 120 120
86 289 Rooms 6.51000 6.48961 19,050,000 19,050,000 60 57
87 288 Units 5.73000 5.69961 19,000,000 19,000,000 120 115
88 28 Units 5.64800 5.62761 18,000,000 18,000,000 120 118
89 428 Units 6.86700 6.84661 17,300,000 17,300,000 60 52
90 176960 Square Feet 5.94000 5.91961 17,212,195 17,212,195 120 119
91 87986 Square Feet 5.53000 5.50961 17,000,000 17,000,000 120 117
92 81825 Square Feet 5.86000 5.83961 17,000,000 17,000,000 120 119
93 210168 Square Feet 5.79000 5.75961 16,280,000 16,280,000 120 120
94 103580 Square Feet 5.65500 5.63461 15,600,000 15,600,000 120 119
95 112023 Square Feet 6.09000 6.01961 15,400,000 15,400,000 120 119
96 120000 Square Feet 6.18000 6.11961 15,000,000 15,000,000 120 119
97 85879 Square Feet 5.85600 5.83561 15,000,000 15,000,000 120 119
98 53756 Square Feet 5.87000 5.84961 14,500,000 14,433,763 120 118
99 288 Units 6.10000 6.07961 14,250,000 14,250,000 120 118
100 208 Units 5.79200 5.72161 14,150,000 14,150,000 120 119
101 176 Units 5.94000 5.86961 14,102,000 14,102,000 120 120
102 104134 Square Feet 5.38550 5.36511 13,800,000 13,800,000 120 116
103 132212 Square Feet 5.93000 5.86961 13,768,000 13,768,000 120 119
104 139 Rooms 5.79000 5.75961 13,700,000 13,669,352 120 118
105 43860 Square Feet 5.66200 5.64161 13,320,000 13,320,000 120 120
105.01 14490 Square Feet 5.66200 5.66200 4,520,000 4,520,000 120 120
105.02 14820 Square Feet 5.66200 5.66200 4,640,000 4,640,000 120 120
105.03
106 92600 Square Feet 5.65330 5.61291 13,300,000 13,300,000 60 59
107 395 Units 6.24000 6.21961 13,220,000 13,220,000 120 119
108 167 Units 5.67000 5.64961 13,000,000 13,000,000 120 119
109 113175 Square Feet 5.39900 5.37861 13,000,000 13,000,000 120 120
110 248 Units 5.94000 5.86961 12,560,000 12,560,000 120 120
111 110769 Square Feet 6.16300 6.14261 12,500,000 12,500,000 72 69
112 98335 Square Feet 5.46820 5.44781 12,200,000 12,200,000 120 120
113 82829 Square Feet 5.64000 5.61961 12,185,000 12,185,000 120 119
114 27320 Square Feet 5.74000 5.71961 12,000,000 12,000,000 120 120
115 58178 Square Feet 5.76000 5.69961 12,000,000 12,000,000 120 119
116 258 Rooms 5.99000 5.96961 12,000,000 11,978,664 120 119
117 63176 Square Feet 6.09000 6.06961 11,790,000 11,790,000 84 83
118 86329 Square Feet 5.79000 5.75961 11,680,000 11,680,000 120 120
119 44460 Square Feet 5.67000 5.64961 11,440,000 11,440,000 120 120
119.01 14820 Square Feet 5.67000 5.67000 3,920,000 3,920,000 120 120
119.02 14820 Square Feet 5.67000 5.67000 3,920,000 3,920,000 120 120
119.03 14820 Square Feet 5.67000 5.67000 3,600,000 3,600,000 120 120
120 112741 Square Feet 5.66000 5.59961 11,350,000 11,334,377 120 119
121 52400 Square Feet 5.84000 5.81961 11,200,000 11,200,000 120 119
122 101 Rooms 6.80500 6.78461 11,200,000 11,181,508 60 59
122.01 54 Rooms 6.80500 6.80500 6,742,480 6,731,347 60 59
122.02 47 Rooms 6.80500 6.80500 4,457,520 4,450,160 60 59
123 261575 Square Feet 5.90400 5.83361 11,100,000 11,100,000 84 81
124 192 Units 5.85000 5.82961 10,600,000 10,600,000 60 60
125 193657 Square Feet 5.62300 5.60261 10,450,000 10,450,000 60 60
126 102 Rooms 6.12000 6.08961 10,400,000 10,400,000 60 58
127 91 Rooms 6.08000 6.04961 10,400,000 10,386,291 120 119
128 29100 Square Feet 5.67700 5.65661 10,048,000 10,048,000 120 120
128.01 14550 Square Feet 5.67700 5.67700 5,760,000 5,760,000 120 120
128.02 14550 Square Feet 5.67700 5.67700 4,288,000 4,288,000 120 120
129 123272 Square Feet 5.58400 5.54361 10,040,000 10,040,000 60 60
130 78539 Square Feet 5.85000 5.82961 10,000,000 10,000,000 84 84
131 202 Units 5.71000 5.68961 7,500,000 7,500,000 120 120
132 122 Units 5.71000 5.68961 2,200,000 2,200,000 120 120
133 51581 Square Feet 5.87000 5.84961 9,650,000 9,650,000 120 118
134 35309 Square Feet 6.14000 6.10961 9,100,000 9,100,000 120 112
135 69823 Square Feet 5.66500 5.64461 9,025,000 9,025,000 120 119
136 114231 Square Feet 5.51000 5.48961 9,000,000 9,000,000 120 120
137 28547 Square Feet 5.87000 5.84961 8,500,000 8,500,000 120 120
138 49008 Square Feet 5.69000 5.66961 8,400,000 8,400,000 60 58
139 75699 Square Feet 5.53500 5.51461 8,250,000 8,250,000 120 119
140 214 Pads 5.92000 5.89961 8,200,000 8,200,000 60 58
141 54333 Square Feet 5.87000 5.84961 8,200,000 8,200,000 120 119
143 185 Pads 6.49000 6.46961 7,800,000 7,800,000 60 53
144 1138678 Square Feet 6.01850 5.95811 7,700,000 7,700,000 180 180
145 200 Units 5.80000 5.77961 7,500,000 7,500,000 120 120
146 19980 Square Feet 5.68950 5.66911 7,250,000 7,250,000 120 120
147 40347 Square Feet 5.86000 5.83961 7,200,000 7,177,827 120 117
148 150 Units 5.84000 5.81961 7,120,000 7,120,000 120 119
149 22493 Square Feet 5.88000 5.79961 7,100,000 7,084,349 120 118
150 7500 Square Feet 5.77000 5.74961 7,000,000 7,000,000 120 120
151 692 Units 5.90000 5.86961 7,000,000 7,000,000 120 120
152 204 Units 5.66000 5.63961 6,940,000 6,940,000 84 82
153 22812 Square Feet 6.05000 6.02961 6,800,000 6,800,000 60 58
154 63 Rooms 6.38000 6.35961 6,750,000 6,750,000 60 60
155 12000 Square Feet 5.77000 5.74961 6,560,000 6,560,000 120 119
155.01 6000 Square Feet 5.77000 5.77000 3,597,419 3,597,419 120 119
155.02 6000 Square Feet 5.77000 5.77000 2,962,581 2,962,581 120 119
156 25164 Square Feet 6.10000 6.06961 6,500,000 6,500,000 120 120
157 23494 Square Feet 5.98000 5.89961 6,423,000 6,423,000 120 120
158 40765 Square Feet 5.66000 5.63961 6,400,000 6,385,422 120 118
159 55745 Square Feet 5.62100 5.60061 6,321,000 6,321,000 120 119
160 62500 Square Feet 5.87000 5.84961 6,300,000 6,300,000 120 119
161 91454 Square Feet 5.94000 5.87961 6,300,000 6,300,000 120 120
162 45 Units 5.61000 5.58961 6,200,000 6,200,000 120 119
163 156 Units 5.84000 5.81961 6,190,000 6,190,000 120 119
164 58514 Square Feet 5.66100 5.64061 6,000,000 6,000,000 60 60
165 96 Units 5.73260 5.71221 6,000,000 6,000,000 120 120
166 38037 Square Feet 5.86650 5.84611 6,000,000 6,000,000 180 180
167 115 Rooms 6.16000 6.13961 6,000,000 5,982,044 120 118
168 622 Units 5.79200 5.77161 5,960,000 5,960,000 120 119
169 32 Units 6.18000 6.09961 5,939,100 5,939,100 120 119
170 54592 Square Feet 5.69500 5.67461 5,925,000 5,925,000 60 58
171 105 Rooms 5.87000 5.83961 5,825,000 5,814,525 120 119
172 45000 Square Feet 6.47250 6.44211 5,700,000 5,700,000 120 120
173 67040 Square Feet 5.84000 5.77961 5,600,000 5,600,000 120 120
174 29345 Square Feet 6.01500 5.99461 5,525,000 5,525,000 120 118
174.01 14660 Square Feet 6.01500 6.01500 3,575,000 3,575,000 120 118
174.02 14685 Square Feet 6.01500 6.01500 1,950,000 1,950,000 120 118
175 86479 Square Feet 5.79000 5.75961 5,455,000 5,455,000 120 119
176 34944 Square Feet 5.88000 5.84961 5,400,000 5,400,000 120 119
177 104 Units 5.84570 5.82531 5,368,000 5,368,000 120 119
178 85314 Square Feet 5.88000 5.84961 5,100,000 5,100,000 120 119
179 69 Units 6.22000 6.15961 5,100,000 5,093,371 120 119
180 82800 Square Feet 5.96850 5.90811 5,050,000 5,050,000 180 180
181 9978 Square Feet 5.79200 5.77161 5,000,000 5,000,000 120 120
181.01 4778 Square Feet 5.79200 5.79200 2,600,000 2,600,000 120 120
181.02 5200 Square Feet 5.79200 5.79200 2,400,000 2,400,000 120 120
182 106458 Square Feet 6.13000 6.10961 5,000,000 4,993,442 120 119
184 58584 Square Feet 5.93000 5.86961 4,600,000 4,600,000 120 120
185 42759 Square Feet 5.53000 5.49961 4,525,000 4,525,000 120 119
186 42919 Square Feet 5.88500 5.77461 4,300,000 4,300,000 120 118
187 524 Spaces 5.69900 5.67861 4,300,000 4,300,000 120 120
188 44 Units 6.16000 6.09961 4,300,000 4,290,945 120 118
189 14550 Square Feet 6.18000 6.15961 4,250,000 4,250,000 120 118
190 29254 Square Feet 6.01500 5.99461 4,235,000 4,235,000 120 118
190.01 14637 Square Feet 6.01500 6.01500 2,382,500 2,382,500 120 118
190.02 14617 Square Feet 6.01500 6.01500 1,852,500 1,852,500 120 118
191 112 Units 5.84000 5.81961 4,225,000 4,225,000 120 119
192 45696 Square Feet 5.65000 5.62961 4,200,000 4,180,356 120 118
193 168 Units 5.70000 5.66961 4,109,000 4,109,000 120 120
194 15120 Square Feet 5.53250 5.51211 4,000,000 4,000,000 120 120
195 125 Units 5.84000 5.81961 3,920,000 3,920,000 120 119
196 24090 Square Feet 5.81500 5.79461 3,900,000 3,891,311 120 118
197 39974 Square Feet 5.70500 5.68461 3,850,000 3,850,000 120 119
198 43600 Square Feet 5.99500 5.97461 3,800,000 3,800,000 60 59
199 20000 Square Feet 5.52000 5.49961 3,750,000 3,750,000 120 119
200 56044 Square Feet 5.95000 5.86961 3,740,000 3,740,000 120 120
201 22360 Square Feet 6.01500 5.99461 3,740,000 3,740,000 120 118
201.01 11203 Square Feet 6.01500 6.01500 2,003,570 2,003,570 120 118
201.02 11157 Square Feet 6.01500 6.01500 1,736,430 1,736,430 120 118
202 108 Pads 6.08000 6.05961 3,650,000 3,650,000 120 117
203 5000 Square Feet 5.77000 5.74961 3,515,000 3,515,000 120 119
204 16053 Square Feet 5.61000 5.54961 3,400,000 3,400,000 120 120
205 25000 Square Feet 5.63200 5.61161 3,400,000 3,393,746 120 119
206 67618 Square Feet 5.93000 5.86961 3,200,000 3,200,000 120 120
207 101 Units 5.70000 5.66961 3,125,000 3,125,000 120 120
208 8000 Square Feet 5.52700 5.45661 3,100,000 3,100,000 120 119
209 11060 Square Feet 5.77000 5.74961 3,100,000 3,100,000 120 120
210 13600 Square Feet 5.85800 5.83761 3,100,000 3,093,142 120 118
211 67 Rooms 5.84000 5.69961 3,050,000 3,040,466 120 118
212 31915 Square Feet 6.10500 6.08461 2,960,000 2,960,000 120 120
213 60 Units 5.84570 5.82531 2,856,000 2,856,000 120 119
214 17513 Square Feet 5.91800 5.89761 2,800,000 2,800,000 120 120
215 35552 Square Feet 5.87000 5.84961 2,700,000 2,700,000 120 119
216 16969 Square Feet 5.64000 5.60961 2,700,000 2,700,000 120 119
217 13871 Square Feet 5.69000 5.66961 2,600,000 2,600,000 120 118
218 60600 Square Feet 6.06850 6.00811 2,260,000 2,260,000 180 180
219 46 Pads 6.12000 6.09961 2,540,000 2,540,000 60 58
220 136582 Square Feet 6.16000 6.12961 2,510,000 2,493,957 120 119
221 19500 Square Feet 5.87000 5.82961 2,175,000 2,175,000 120 117
222 64 Rooms 6.39000 6.29961 2,150,000 2,150,000 120 120
223 84 Units 6.26000 6.23961 2,100,000 2,095,649 120 118
224 28149 Square Feet 5.60730 5.56691 2,000,000 2,000,000 60 60
225 10700 Square Feet 5.52700 5.45661 1,900,000 1,900,000 120 119
226 3362 Square Feet 5.80000 5.71961 1,750,000 1,750,000 120 120
227 36 Units 5.84570 5.82531 1,208,000 1,208,000 120 119
228 5054 Square Feet 5.52700 5.45661 1,200,000 1,200,000 120 119
229 28 Units 5.84570 5.82531 1,080,000 1,080,000 120 119
Monthly
Maturity/ARD Debt Servicing Fee
Loan # Date Amort. Term Rem. Amort. Service Rate Accrual Type ARD (Y/N)
------- -------------- ------------- ----------- ----------- -------------- -------------- --------
SEQNUM MAT_DATE AM_TERM REM_AMTERM MONTHLY_PMT SERVICE_FEE ACCRUAL_TYPE ARD
1 12/10/16 0 0 1,132,936 0.02000 Actual/360 No
2 03/01/17 0 0 1,044,242 0.02000 Actual/360 No
3 02/01/17 0 0 986,958 0.02000 Actual/360 No
3.01 02/01/17 0 0 0.00000 No
3.02 02/01/17 0 0 0.00000 No
3.03 02/01/17 0 0 0.00000 No
3.04 02/01/17 0 0 0.00000 No
3.05 02/01/17 0 0 0.00000 No
3.06 02/01/17 0 0 0.00000 No
3.07 02/01/17 0 0 0.00000 No
3.08 02/01/17 0 0 0.00000 No
4 03/01/17 0 0 914,105 0.02000 Actual/360 No
4.01 03/01/17 0 0 0.00000 No
4.02 03/01/17 0 0 0.00000 No
4.03 03/01/17 0 0 0.00000 No
4.04 03/01/17 0 0 0.00000 No
4.05 03/01/17 0 0 0.00000 No
4.06 03/01/17 0 0 0.00000 No
4.07 03/01/17 0 0 0.00000 No
4.08 03/01/17 0 0 0.00000 No
4.09 03/01/17 0 0 0.00000 No
5 01/11/17 0 0 879,427 0.02000 Actual/360 No
5.01 01/11/17 0 0 0.00000 No
5.02 01/11/17 0 0 0.00000 No
5.03 01/11/17 0 0 0.00000 No
5.04 01/11/17 0 0 0.00000 No
5.05 01/11/17 0 0 0.00000 No
5.06 01/11/17 0 0 0.00000 No
5.07 01/11/17 0 0 0.00000 No
5.08 01/11/17 0 0 0.00000 No
5.09 01/11/17 0 0 0.00000 No
5.10 01/11/17 0 0 0.00000 No
6 11/11/11 0 0 811,449 0.02000 Actual/360 No
7 12/11/13 0 0 721,906 0.02000 Actual/360 No
8 04/01/13 0 0 155,174 0.02000 Actual/360 No
9 04/01/14 0 0 105,296 0.02000 Actual/360 No
10 04/01/13 0 0 80,358 0.02000 Actual/360 No
11 04/01/13 0 0 62,347 0.02000 Actual/360 No
12 04/01/13 0 0 57,082 0.02000 Actual/360 No
13 04/01/12 0 0 51,955 0.02000 Actual/360 No
14 04/01/12 0 0 42,673 0.02000 Actual/360 No
15 04/01/14 0 0 30,758 0.02000 Actual/360 No
16 04/01/14 0 0 27,987 0.02000 Actual/360 No
17 04/01/12 0 0 14,409 0.02000 Actual/360 No
18 04/01/13 0 0 10,530 0.02000 Actual/360 No
19 11/01/13 0 0 588,218 0.02000 Actual/360 No
19.01 11/01/13 0 0 0.00000 No
19.02 11/01/13 0 0 0.00000 No
19.03 11/01/13 0 0 0.00000 No
19.04 11/01/13 0 0 0.00000 No
19.05 11/01/13 0 0 0.00000 No
19.06 11/01/13 0 0 0.00000 No
19.07 11/01/13 0 0 0.00000 No
19.08 11/01/13 0 0 0.00000 No
19.09 11/01/13 0 0 0.00000 No
19.10 11/01/13 0 0 0.00000 No
19.11 11/01/13 0 0 0.00000 No
19.12 11/01/13 0 0 0.00000 No
19.13 11/01/13 0 0 0.00000 No
20 01/01/12 0 0 621,507 0.02000 Actual/360 No
21 03/09/12 0 0 503,459 0.02000 Actual/360 No
22 03/11/17 360 360 697,158 0.02000 Actual/360 No
23 02/10/17 0 0 535,050 0.02000 Actual/360 No
24 01/11/17 0 0 551,894 0.02000 Actual/360 No
25 03/01/17 0 0 456,659 0.02000 Actual/360 No
25.01 03/01/17 0 0 0.00000 No
25.02 03/01/17 0 0 0.00000 No
25.03 03/01/17 0 0 0.00000 No
25.04 03/01/17 0 0 0.00000 No
25.05 03/01/17 0 0 0.00000 No
25.06 03/01/17 0 0 0.00000 No
26 11/11/16 0 0 470,360 0.02000 Actual/360 No
27 01/10/17 0 0 410,625 0.02000 Actual/360 No
28 01/10/14 0 0 384,564 0.02000 Actual/360 No
29 02/09/17 0 0 423,898 0.02000 Actual/360 No
30 02/11/12 0 0 400,283 0.02000 Actual/360 No
31 01/09/12 0 0 344,688 0.02000 Actual/360 No
32 12/11/16 0 0 301,616 0.02000 Actual/360 No
32.01 12/11/16 0 0 0.00000 No
32.02 12/11/16 0 0 0.00000 No
32.03 12/11/16 0 0 0.00000 No
32.04 12/11/16 0 0 0.00000 No
33 10/11/16 360 355 76,102 0.02000 Actual/360 No
34 10/11/16 360 355 70,889 0.02000 Actual/360 No
35 10/11/16 360 355 48,407 0.02000 Actual/360 No
36 10/11/16 360 355 25,532 0.02000 Actual/360 No
37 10/11/16 360 355 22,714 0.02000 Actual/360 No
38 10/11/16 360 355 22,367 0.02000 Actual/360 No
39 10/11/16 360 355 18,687 0.02000 Actual/360 No
40 10/11/16 360 355 18,241 0.02000 Actual/360 No
41 10/11/16 360 355 16,370 0.02000 Actual/360 No
42 10/11/16 360 355 15,574 0.02000 Actual/360 No
43 10/11/16 360 355 12,616 0.02000 Actual/360 No
44 02/01/17 0 0 303,326 0.02000 Actual/360 No
45 01/11/12 0 0 300,791 0.02000 Actual/360 No
46 03/01/14 0 0 144,062 0.02000 Actual/360 No
47 03/01/13 0 0 59,182 0.02000 Actual/360 No
48 03/01/13 0 0 56,091 0.02000 Actual/360 No
49 03/01/12 0 0 6,787 0.02000 Actual/360 No
50 02/11/12 0 0 274,172 0.02000 Actual/360 No
51 03/10/17 0 0 243,247 0.02000 Actual/360 No
52 01/01/17 360 360 293,117 0.02000 Actual/360 No
52.01 01/01/17 360 360 0.00000 No
52.02 01/01/17 360 360 0.00000 No
52.03 01/01/17 360 360 0.00000 No
52.04 01/01/17 360 360 0.00000 No
52.05 01/01/17 360 360 0.00000 No
52.06 01/01/17 360 360 0.00000 No
53 10/11/11 0 0 237,867 0.02000 Actual/360 No
53.01 01/00/00 0 - No
53.02 01/00/00 0 - No
53.03 01/00/00 0 - No
53.04 01/00/00 0 - No
53.05 01/00/00 0 - No
53.06 01/00/00 0 - No
53.07 01/00/00 0 - No
53.08 01/00/00 0 - No
54 03/11/17 360 360 261,760 0.02000 Actual/360 No
55 02/01/12 0 0 202,556 0.02000 Actual/360 No
56 02/09/17 0 0 206,610 0.02000 Actual/360 No
57 12/09/16 0 0 217,623 0.02000 Actual/360 No
57.01 12/09/16 0 0 0.00000 No
57.02 12/09/16 0 0 0.00000 No
58 03/01/17 0 0 198,851 0.04000 Actual/360 No
59 01/01/17 0 0 198,320 0.04000 Actual/360 No
60 12/01/11 0 0 187,434 0.03000 Actual/360 No
61 02/01/16 0 0 159,569 0.02000 Actual/360 No
61.01 02/01/16 0 0 0.00000 No
61.02 02/01/16 0 0 0.00000 No
61.03 02/01/16 0 0 0.00000 No
61.04 02/01/16 0 0 0.00000 No
61.05 02/01/16 0 0 0.00000 No
61.06 02/01/16 0 0 0.00000 No
61.07 02/01/16 0 0 0.00000 No
61.08 02/01/16 0 0 0.00000 No
61.09 02/01/16 0 0 0.00000 No
61.10 02/01/16 0 0 0.00000 No
61.11 02/01/16 0 0 0.00000 No
61.12 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.13 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.14 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.15 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.16 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.17 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.18 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.19 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.20 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
62 03/01/17 360 360 199,709 0.02000 Actual/360 No
63 03/11/17 0 0 165,303 0.07000 Actual/360 No
64 03/11/17 0 0 149,876 0.02000 Actual/360 No
65 01/01/17 300 298 192,778 0.03000 Actual/360 No
65.01 01/01/17 300 298 0.00000 No
65.02 01/01/17 300 298 0.00000 No
65.03 01/01/17 300 298 0.00000 No
65.04 01/01/17 300 298 0.00000 No
65.05 01/01/17 300 298 0.00000 No
66 02/01/14 300 299 195,320 0.02000 Actual/360 No
67 03/11/17 360 360 177,174 0.02000 Actual/360 No
68 02/11/12 360 360 180,444 0.02000 Actual/360 No
69 03/11/12 0 0 136,495 0.02000 Actual/360 No
70 03/09/17 0 0 140,297 0.02000 Actual/360 No
71 01/09/17 360 360 167,280 0.02000 Actual/360 No
71.01 01/09/17 360 360 0.00000 No
71.02 01/09/17 360 360 0.00000 No
71.03 01/09/17 360 360 0.00000 No
71.04 01/09/17 360 360 0.00000 No
71.05 01/09/17 360 360 0.00000 No
71.06 01/09/17 360 360 0.00000 No
71.07 01/09/17 360 360 0.00000 No
71.08 01/09/17 360 360 0.00000 No
71.09 01/09/17 360 360 0.00000 No
72 01/11/17 0 0 133,681 0.02000 Actual/360 No
73 03/06/17 0 0 126,589 0.02000 Actual/360 No
73.01 03/06/17 0 0 0.00000 No
73.02 03/06/17 0 0 0.00000 No
73.03 03/06/17 0 0 0.00000 No
74 01/11/12 0 0 119,943 0.02000 Actual/360 No
75 01/01/12 0 0 119,850 0.02000 Actual/360 No
76 02/09/17 0 0 121,573 0.02000 Actual/360 No
77 11/01/16 0 0 113,183 0.02000 Actual/360 No
78 01/01/12 0 0 112,563 0.02000 Actual/360 No
79 10/11/16 360 355 135,138 0.02000 Actual/360 No
80 02/10/17 0 0 106,434 0.02000 Actual/360 No
81 03/11/17 0 0 114,367 0.03500 Actual/360 No
82 02/01/17 360 360 122,750 0.05000 Actual/360 No
83 02/11/17 360 360 123,788 0.02000 Actual/360 No
84 02/01/12 0 0 102,973 0.02000 Actual/360 No
85 03/01/17 360 360 115,288 0.02000 Actual/360 No
86 12/09/11 0 0 104,782 0.02000 Actual/360 No
87 10/01/16 360 360 110,638 0.03000 Actual/360 No
88 01/10/17 0 0 85,897 0.02000 Actual/360 No
89 07/11/11 0 0 100,374 0.02000 Actual/360 No
90 02/11/17 0 0 85,200 0.02000 30/360 Yes
91 12/11/16 420 420 91,627 0.02000 Actual/360 No
92 02/09/17 0 0 84,170 0.02000 Actual/360 No
93 04/01/17 360 360 95,420 0.03000 Actual/360 No
94 02/09/17 0 0 74,536 0.02000 Actual/360 No
95 02/11/17 360 360 93,224 0.07000 Actual/360 No
96 02/11/17 240 240 109,028 0.06000 Actual/360 Yes
97 02/09/17 0 0 74,217 0.02000 Actual/360 No
98 01/09/17 240 238 102,798 0.02000 Actual/360 No
99 01/01/17 360 360 86,354 0.02000 Actual/360 No
100 02/01/17 0 0 69,246 0.07000 Actual/360 No
101 03/11/17 0 0 70,774 0.07000 Actual/360 No
102 11/01/16 0 0 62,793 0.02000 Actual/360 No
103 02/01/17 360 360 81,928 0.06000 Actual/360 No
104 01/01/17 360 358 80,298 0.03000 Actual/360 No
105 03/09/17 0 0 63,721 0.02000 Actual/360 No
105.01 03/09/17 0 0 0.00000 No
105.02 03/09/17 0 0 0.00000 No
105.03
106 02/01/12 0 0 63,528 0.04000 Actual/360 No
107 02/11/17 360 360 81,312 0.02000 Actual/360 No
108 02/11/17 360 360 75,205 0.02000 Actual/360 No
109 03/09/17 0 0 59,302 0.02000 Actual/360 No
110 03/11/17 0 0 63,036 0.07000 Actual/360 No
111 12/11/12 0 0 65,090 0.02000 Actual/360 No
112 03/01/17 360 360 69,027 0.02000 Actual/360 No
113 02/11/17 0 0 58,065 0.02000 Actual/360 No
114 03/09/17 0 0 58,197 0.02000 Actual/360 No
115 02/01/17 360 360 70,105 0.06000 Actual/360 No
116 02/09/17 300 299 77,243 0.02000 Actual/360 No
117 02/01/14 360 360 71,371 0.02000 Actual/360 No
118 03/01/17 360 360 68,458 0.03000 Actual/360 No
119 03/09/17 0 0 54,805 0.02000 Actual/360 No
119.01 03/09/17 0 0 0.00000 No
119.02 03/09/17 0 0 0.00000 No
119.03 03/09/17 0 0 0.00000 No
120 02/01/17 360 359 65,588 0.06000 Actual/360 No
121 02/11/17 360 360 66,002 0.02000 Actual/360 No
122 02/10/12 300 299 77,772 0.02000 Actual/360 No
122.01 02/10/12 300 299 0.00000 No
122.02 02/10/12 300 299 0.00000 No
123 12/01/13 360 360 65,867 0.07000 Actual/360 No
124 03/10/12 0 0 52,393 0.02000 Actual/360 No
125 03/11/12 0 0 48,967 0.02000 30/360 No
126 01/01/12 360 360 63,158 0.03000 Actual/360 No
127 02/01/17 360 359 62,889 0.03000 Actual/360 No
128 03/09/17 0 0 48,196 0.02000 Actual/360 No
128.01 03/09/17 0 0 0.00000 No
128.02 03/09/17 0 0 0.00000 No
129 03/01/12 0 0 47,368 0.04000 Actual/360 No
130 03/01/14 360 360 58,994 0.02000 Actual/360 No
131 03/11/17 360 360 43,578 0.02000 Actual/360 No
132 03/11/17 360 360 12,783 0.02000 Actual/360 No
133 01/09/17 0 0 47,860 0.02000 Actual/360 No
134 07/01/16 360 360 55,381 0.03000 Actual/360 No
135 02/11/17 360 360 52,181 0.02000 Actual/360 No
136 03/09/17 0 0 41,899 0.02000 Actual/360 No
137 03/09/17 0 0 42,157 0.02000 Actual/360 No
138 01/11/12 0 0 40,383 0.02000 Actual/360 No
139 02/11/17 0 0 38,582 0.02000 Actual/360 No
140 01/11/12 0 0 41,015 0.02000 Actual/360 No
141 02/09/17 360 360 48,480 0.02000 30/360 No
143 08/11/11 360 360 49,250 0.02000 Actual/360 No
144 04/01/22 360 360 46,257 0.06000 Actual/360 No
145 03/11/17 0 0 36,753 0.02000 Actual/360 No
146 04/01/17 360 360 42,031 0.02000 Actual/360 No
147 12/11/16 360 357 42,522 0.02000 Actual/360 Yes
148 02/11/17 360 360 41,958 0.02000 Actual/360 No
149 01/01/17 360 358 42,022 0.08000 Actual/360 No
150 03/09/17 0 0 34,126 0.02000 Actual/360 No
151 03/01/17 360 360 41,520 0.03000 Actual/360 No
152 01/11/14 360 360 40,104 0.02000 Actual/360 No
153 01/11/12 0 0 34,759 0.02000 Actual/360 No
154 03/11/12 360 360 42,133 0.02000 Actual/360 No
155 02/11/17 360 360 38,366 0.02000 Actual/360 No
155.01 02/11/17 360 360 0.00000 No
155.02 02/11/17 360 360 0.00000 No
156 03/01/17 360 360 39,390 0.03000 Actual/360 No
157 03/01/17 360 360 38,427 0.08000 Actual/360 No
158 01/09/17 361 359 36,960 0.02000 Actual/360 No
159 02/01/17 0 0 30,020 0.02000 Actual/360 No
160 02/09/17 0 0 30,818 0.02000 30/360 No
161 03/01/17 360 360 37,529 0.06000 Actual/360 No
162 02/09/17 0 0 29,408 0.02000 Actual/360 No
163 02/11/17 360 360 36,478 0.02000 Actual/360 No
164 03/01/12 0 0 28,698 0.02000 Actual/360 No
165 03/01/17 360 360 34,948 0.02000 Actual/360 No
166 03/01/22 180 180 50,200 0.02000 Actual/360 No
167 01/01/17 300 298 39,247 0.02000 Actual/360 No
168 02/09/17 0 0 29,166 0.02000 Actual/360 No
169 02/06/17 0 0 31,011 0.08000 Actual/360 No
170 01/01/12 360 360 34,370 0.02000 Actual/360 No
171 02/01/17 300 299 37,069 0.03000 Actual/360 No
172 03/01/17 360 360 35,925 0.03000 Actual/360 No
173 03/01/17 360 360 33,001 0.06000 Actual/360 No
174 01/09/17 0 0 28,079 0.02000 Actual/360 No
174.01 0 0 0.00000 No
174.02 0 0 0.00000 No
175 02/01/17 360 360 31,973 0.03000 Actual/360 No
176 02/01/17 360 360 31,960 0.03000 Actual/360 No
177 02/01/17 360 360 31,653 0.02000 Actual/360 No
178 02/01/17 300 300 32,486 0.03000 Actual/360 No
179 02/11/17 360 359 31,302 0.06000 Actual/360 No
180 04/01/22 360 360 30,175 0.06000 Actual/360 No
181 03/09/17 360 360 29,312 0.02000 Actual/360 No
181.01 360 360 0.00000 No
181.02 360 360 0.00000 No
182 02/09/17 360 359 30,397 0.02000 Actual/360 No
184 03/01/17 360 360 27,373 0.06000 Actual/360 No
185 02/01/17 360 360 25,778 0.03000 Actual/360 No
186 01/01/17 360 360 25,464 0.11000 Actual/360 No
187 03/06/17 360 360 24,954 0.02000 Actual/360 No
188 01/01/17 360 358 26,225 0.06000 Actual/360 No
189 01/09/17 0 0 22,191 0.02000 Actual/360 No
190 01/09/17 0 0 21,523 0.02000 Actual/360 No
190.01 01/09/17 0 0 0.00000 No
190.02 01/09/17 0 0 0.00000 No
191 02/11/17 360 360 24,898 0.02000 Actual/360 No
192 01/01/17 240 238 29,248 0.02000 Actual/360 No
193 04/01/17 360 360 23,849 0.03000 Actual/360 No
194 03/10/17 360 360 22,793 0.02000 Actual/360 No
195 02/11/17 360 360 23,101 0.02000 Actual/360 No
196 01/11/17 360 358 22,921 0.02000 Actual/360 No
197 02/01/17 360 360 22,358 0.02000 Actual/360 No
198 02/09/12 0 0 18,984 0.02000 30/360 No
199 02/01/17 360 360 21,339 0.02000 Actual/360 No
200 04/01/17 360 360 22,303 0.08000 Actual/360 No
201 01/09/17 0 0 19,007 0.02000 Actual/360 No
201.01 01/09/17 0 0 0.00000 No
201.02 01/09/17 0 0 0.00000 No
202 12/11/16 360 360 22,072 0.02000 Actual/360 No
203 02/11/17 360 360 20,557 0.02000 Actual/360 No
204 04/01/17 360 360 19,540 0.06000 Actual/360 No
205 02/09/17 300 299 21,148 0.02000 Actual/360 No
206 03/01/17 360 360 19,042 0.06000 Actual/360 No
207 04/01/17 360 360 18,138 0.03000 Actual/360 No
208 02/01/17 360 360 17,654 0.07000 Actual/360 No
209 03/11/17 360 360 18,130 0.02000 Actual/360 Yes
210 01/09/17 360 358 18,304 0.02000 Actual/360 No
211 01/01/17 300 298 19,354 0.14000 Actual/360 No
212 03/11/17 360 360 17,947 0.02000 Actual/360 No
213 02/01/17 360 360 16,841 0.02000 Actual/360 No
214 03/01/17 360 360 16,640 0.02000 Actual/360 No
215 02/09/17 0 0 13,208 0.02000 30/360 No
216 02/01/17 360 360 15,568 0.03000 Actual/360 No
217 01/09/17 0 0 12,500 0.02000 Actual/360 No
218 04/01/22 360 360 13,650 0.06000 Actual/360 No
219 01/11/12 0 0 13,134 0.02000 Actual/360 No
220 02/01/17 120 119 28,068 0.03000 Actual/360 No
221 12/11/16 360 360 12,859 0.04000 Actual/360 No
222 03/01/17 300 300 14,370 0.09000 Actual/360 No
223 01/01/17 360 358 12,944 0.02000 Actual/360 No
224 03/01/12 0 0 9,475 0.04000 Actual/360 No
225 02/01/17 360 360 10,820 0.07000 Actual/360 No
226 03/01/17 360 360 10,268 0.08000 Actual/360 No
227 02/01/17 360 360 7,123 0.02000 Actual/360 No
228 02/01/17 360 360 6,834 0.07000 Actual/360 No
229 02/01/17 360 360 6,368 0.02000 Actual/360 No
ARD Step Up Originator/Loan
Loan # (%) Title Type Crossed Loan Seller Guarantor
------- ------------- -------------- -------------- --------------------- ----------------------------------------------------------
SEQNUM ARD_STEPUP TITLE_TYPE CROSS_LOAN SELLER PRINCIPAL
1 Fee/Leasehold NCCI Coconut Point Town Center, LLC
2 Fee JPMCB Boston Properties Limited Partnership
3 Fee EHY Vornado Realty L.P.
3.01 Fee EHY
3.02 Fee EHY
3.03 Fee EHY
3.04 Fee EHY
3.05 Fee EHY
3.06 Fee EHY
3.07 Fee EHY
3.08 Fee EHY
4 Fee JPMCB Lafayette Real Estate, LLC
4.01 Fee JPMCB
4.02 Fee JPMCB
4.03 Fee JPMCB
4.04 Fee JPMCB
4.05 Fee JPMCB
4.06 Fee JPMCB
4.07 Fee JPMCB
4.08 Fee JPMCB
4.09 Fee JPMCB
5 Fee EHY
5.01 Fee EHY
5.02 Fee EHY
5.03 Fee EHY
5.04 Fee EHY
5.05 Fee EHY
5.06 Fee EHY
5.07 Fee EHY
5.08 Fee EHY
5.09 Fee EHY
5.10 Fee EHY
6 Fee/Leasehold EHY General Growth Properties, Inc.
7 Fee EHY Xxxxxx X. Xxxxxxx III
8 Fee A JPMCB Colony Realty Partners II, L.P.
9 Fee A JPMCB Colony Realty Partners II, L.P.
10 Fee A JPMCB Colony Realty Partners II, L.P.
11 Fee A JPMCB Colony Realty Partners II, L.P.
12 Fee A JPMCB Colony Realty Partners II, L.P.
13 Fee A JPMCB Colony Realty Partners II, L.P.
14 Fee A JPMCB Colony Realty Partners II, L.P.
15 Fee A JPMCB Colony Realty Partners II, L.P.
16 Fee A JPMCB Colony Realty Partners II, L.P.
17 Fee A JPMCB Colony Realty Partners II, L.P.
18 Fee A JPMCB Colony Realty Partners II, L.P.
19 Fee JPMCB Centro Saturn LLC
19.01 Fee JPMCB
19.02 Fee JPMCB
19.03 Fee JPMCB
19.04 Fee JPMCB
19.05 Fee JPMCB
19.06 Fee JPMCB
19.07 Fee JPMCB
19.08 Fee JPMCB
19.09 Fee JPMCB
19.10 Fee JPMCB
19.11 Fee JPMCB
19.12 Fee JPMCB
19.13 Fee JPMCB
20 Fee JPMCB Investcorp Properties Limited
21 Fee UBS SRI Eight Franklin Tower LLC
22 Fee UBS Xxxxxxx Xxxxxx, Xxxxxx Xxxxxx
23 Leasehold UBS Xxx New Venture Properties, LLC
24 Fee NCCI WALF, LLC
25 Fee JPMCB Osprey East, A Xxxxxx/Osprey Joint Venture, L.L.C.
25.01 Fee JPMCB
25.02 Fee JPMCB
25.03 Fee JPMCB
25.04 Fee JPMCB
25.05 Fee JPMCB
25.06 Fee JPMCB
26 Fee NCCI Xxxxx X. Xxxxxxxx
27 Leasehold UBS Xxxxxx Xxxxxx
28 Fee UBS Swig Equities/JPIM
29 Fee UBS Xxxxxx Xxxxxxx
30 Fee NCCI JPI Multifamily Investments, L.P.
31 Fee UBS Xxxxx X. Xxxxxxx
32 Fee UBS Americold Realty Trust, L.P.
32.01 Fee UBS
32.02 Fee UBS
32.03 Fee UBS
32.04 Fee UBS
33 Fee B NCCI J.K. Properties, Inc.
34 Fee B NCCI J.K. Properties, Inc.
35 Fee B NCCI J.K. Properties, Inc.
36 Fee B NCCI J.K. Properties, Inc.
37 Fee B NCCI J.K. Properties, Inc.
38 Fee B NCCI J.K. Properties, Inc.
39 Fee B NCCI Woodman Realty, Inc.
40 Fee B NCCI J.K. Properties, Inc.
41 Fee B NCCI J.K. Properties, Inc.
42 Fee B NCCI J.K. Properties, Inc.
43 Fee B NCCI J.K. Properties, Inc.
44 Fee JPMCB Fairfield Colony L.P.
Commingled Pension Trust Fund (Special Situation
45 Fee EHY Property) of JPMorgan Chase Bank, N.A.
46 Fee A JPMCB Colony Realty Partners, L.P.
47 Fee A JPMCB Colony Realty Partners, L.P.
48 Fee A JPMCB Colony Realty Partners, L.P.
49 Fee A JPMCB Colony Realty Partners, L.P.
50 Fee NCCI Xxxxxx Xxxxxxxxx, Xxxxxx X. Xxxxx
51 Fee UBS Xxxxx Xxxxxxx
52 Fee AIG Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxx
52.01 Fee AIG
52.02 Fee AIG
52.03 Fee AIG
52.04 Fee AIG
52.05 Fee AIG
52.06 Fee AIG
53 Fee NCCI Xxxxx X. Xxxxx, Xxxxxx Xxxxx
53.01 Fee NCCI
53.02 Fee NCCI
53.03 Fee NCCI
53.04 Fee NCCI
53.05 Fee NCCI
53.06 Fee NCCI
53.07 Fee NCCI
53.08 Fee NCCI
54 Fee EHY Xxxxxxx Xxxxxxx
55 Fee JPMCB Macerich XxxXxx Xxxxx 0 SPE LLC
56 Fee UBS TPG/CalSTRS, LLC
57 Fee UBS Xxxxx Xxxxxxxxx, Xxxx Xxxxxx
57.01 Fee UBS
57.02 Fee UBS
58 Fee JPMCB Xxxxxxxx & Associates, Inc.
59 Fee JPMCB Xxxxxxx X. Xxxxx
60 Fee JPMCB RREEF AMERICA REIT III CORP. GG2
61 Fee JPMCB Americold Realty Trust
61.01 Fee JPMCB
61.02 Fee JPMCB
61.03 Fee JPMCB
61.04 Fee JPMCB
61.05 Fee JPMCB
61.06 Fee JPMCB
61.07 Fee JPMCB
61.08 Fee JPMCB
61.09 Fee JPMCB
61.10 Fee JPMCB
61.11 Fee JPMCB
61.12 #N/A #N/A #N/A #N/A #N/A
61.13 #N/A #N/A #N/A #N/A #N/A
61.14 #N/A #N/A #N/A #N/A #N/A
61.15 #N/A #N/A #N/A #N/A #N/A
61.16 #N/A #N/A #N/A #N/A #N/A
61.17 #N/A #N/A #N/A #N/A #N/A
61.18 #N/A #N/A #N/A #N/A #N/A
61.19 #N/A #N/A #N/A #N/A #N/A
61.20 #N/A #N/A #N/A #N/A #N/A
62 Fee JPMCB Continental Development Corporation
63 Fee NCCI Xxxx Xxxxxxxxxx , Xxxxx Xxxx Xxxxxxxxxx
64 Fee NCCI Xxxxxx X. Xxxxxxxxx
65 0 Fee PNC Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxx
65.01 Fee PNC
65.02 Fee PNC
65.03 Fee PNC
65.04 Fee PNC
65.05 Fee PNC
66 Fee JPMCB San Xxxx Office Investments, L.P.
67 Leasehold NCCI Xxxxxx X. Xxxx, Xxxxxxx X. Xxxxxx
68 Fee NCCI Xxxxxx Xxxx
69 Fee NCCI Shea and Tatum Associates Limited Partnership
70 Fee UBS Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxxxxxxx
71 Fee UBS Xxxxxx X. XxXxxxxx
71.01 Fee UBS
71.02 Fee UBS
71.03 Fee UBS
71.04 Fee UBS
71.05 Fee UBS
71.06 Fee UBS
71.07 Fee UBS
71.08 Fee UBS
71.09 Fee UBS
72 Fee NCCI Xxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxx
73 Fee EHY Xxxx Xxxxxxxx, Xxxxxxx Xxxxxx
73.01 Fee EHY
73.02 Fee EHY
73.03 Fee EHY
74 Fee EHY LaSalle Income and Growth Fund IV
75 Fee JPMCB Xxxxxxxx X. Xxxxxxx
Xxxxx X.
76 Fee UBS Xxxxxxx
77 Fee JPMCB Kimco Realty Corporation
78 Fee JPMCB F. Xxxxxxx XxXxxxxx
79 Fee NCCI J.K. Properties, Inc.
Xxxxxx Xxxx Trust, UDT dated March 10, 1983, as
80 Fee UBS amended
81 Leasehold NCCI Xxx Xxxxx Siam, Xxxxxx Xxxxxxx
82 Fee PNC Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxx
Xxxx X'Xxxxx-Xxxxxx, Xxxx Xx Xxxxx, Xxxxxxx Xxxx, Xxxxxx
Xxxx, Xxxxxx X.X. Xxxxxx, Xxxxx X. Xxxx, Xxxxx X. Xxxx,
Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxx, Xxxxxxx Xxxxxxxxxx,
Xxxxxxxxxxx Xxxx, Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx,
83 Fee NCCI Xxxxxx Xxxxxxx Xxxxxx, Xxxxxxx Xxx Xxxxxx
84 Fee NCCI Xxxxx X. Xxxxxxx, Xxxxxxx Xxxxxx
85 Fee AIG Xxxxx X. Xxxxxxxxx , Xxxxxx X. Xxxxxxx
86 Fee UBS Xxxxxxx Xxxxxxxx
87 Fee PNC Case-Remington Limited Partnership
88 Fee UBS Xxxxxx Xxx-or
89 Fee NCCI Xxxx Xxxxxx, Xxxxx Xxxxxxxxx
Lesser of
(a) the
maximum
rate
permitted
by the law,
90 or (b) 7.94% Fee NCCI Inland Real Estate Exchange Corporation
91 Fee NCCI W Hemet Holdings LLC
Show Lain C.
92 Fee UBS Cheng
93 Fee PNC BENDERSON 1985-1 TRUST
94 Fee/Leasehold UBS Xxxxxx X. Xxxxx
95 Fee NCCI Xxxxx X. Xxxxxx, Touchmark Living Centers, Inc.
Greater of
(i) IR +2%
or (ii) TR
96 +5% Fee NCCI Xxxx Xxxxxx
97 Fee UBS Xxxx Xxxxxxxxxx
98 Fee UBS ACS Realty
99 Fee NCCI Xxxxxxxx Xxxxxxxx, Xxxxxxx Xxxxx
100 Fee JPMCB Xxxxxx X. Xxxx, Xxxxxxx X. Xxxx
101 Fee NCCI Xxxx Xxxxxxxxxx, Xxxxx Xxxx Xxxxxxxxxx
102 Fee JPMCB Kimco Realty Corporation
103 Fee PNC Xxxxx Xxxxxxxxxx, Xxxx X. Xxxxx, Xxxxxx X. Xxxxxx
104 Fee PNC Benderson 85-1 Trust
105 Fee C UBS Xxxxx Xxxxxxxx
105.01 Fee UBS
105.02 Fee UBS
105.03
106 Fee JPMCB Xxxxxxxx & Associates, Inc.
107 Fee NCCI Xxxx Xxxxxxxx, Xxxx Xxxxx
108 Fee NCCI Xxxxxx X. Xxxxxxxx
109 Fee UBS Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxxx
110 Fee NCCI Xxxx Xxxxxxxxxx, Xxxxx Xxxx Xxxxxxxxxx
Xxxx S. Good, Xxxxxxx X. Good, Xxxxx X. Way, Xxxxxx X.
111 Fee NCCI Way
112 Fee JPMCB Xxxxxx Xxxxx
113 Fee/Leasehold NCCI Xxxxx X. Xxxxxxxx
Xxxx Xxxxx, Xxxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxx Xxxxx, X.
Xxxxx Family Limited Partnership, Xxxxxx Family Limited
114 Fee UBS Partnership, Xxxxxx Xxxxx, Xxx Xxxxxx
115 Fee PNC Xxxxxxx Family Living Trust
116 Fee/Leasehold UBS Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, Xxxx XxXxxxxx, Xxxxx Xxxxx, Xxxxxx
117 Fee JPMCB Xxxxxx
118 Fee PNC BENDERSON 1985-1 TRUST
119 Fee C UBS Xxxxx Xxxxxxxx
119.01 Fee UBS
119.02 Fee UBS
119.03 Fee UBS
Xxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxxx, Xxxxxxxx Xxxxxxx,
120 Fee PNC Jr., Xxxxxx Xxxxxxx
Direct Invest, L.L.C., Xxxxxxx Xxxxxxx, Xxxxxxx X. Xxxx,
121 Fee EHY III, Xxxx Xxxxxx
122 Fee UBS Xxxxxxx X. Xxxx, Xxxxxx X. Xxxxxxxxx
122.01 Fee UBS
122.02 Fee UBS
123 Fee JPMCB Regency Commercial Associates, LLC; Xxxxx X. XxXxxxxx
124 Fee UBS MHE Properties, LLC - Xxxxx Xxxxxxxx
125 Fee NCCI MB Rockford State, L.L.C., Minto Builders (Florida), Inc.
126 Fee PNC Xxxxxxx X. Xxxx
127 Fee PNC Xxxxx Xxxxxxx
128 Fee C UBS Xxxxx Xxxxxxxx
128.01 Fee UBS
128.02 Fee UBS
129 Fee D JPMCB Xxxxxxxx & Associates, Inc.
130 Fee AIG CEI Realty, Inc
131 Fee E NCCI Xxxxxx X. Xxxxxx
132 Fee E NCCI Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxx, Xxxx Xxxxxxxxxx,
133 Fee UBS Xxxxxxx X. Xxxxxxx
134 Fee PNC Xxxxxxx X. Xxxxxxx, Xxxxxxx Xxxxxxx, Xxxxx Xxxxxx
135 Fee EHY Guardian Realty Fund II Business Trust
136 Fee UBS Xxxx Xxxxx
137 Fee UBS Xxxxx Properties
138 Fee NCCI Xxxxxxx X. Xxxxxxxxx
139 Fee EHY Global Retail Investors, LLC
000 Xxx XXXX Xxxxx XxXxxx, Xxxxxx Xxxxx
141 Fee UBS Xxxx Xxxxx
143 Fee NCCI Xxx X. Xxxxxxxxx
144 Fee F JPMCB Xxxxxx St. Xxxx, LLC
145 Fee EHY Xxxxxx Xxxxxxx, Xxxx Xxxxxx
146 Fee JPMCB Charley and Xxxxx Xxxxxxx Trust
Greater of
IR +2% or
147 TR+1.25%+2% Fee NCCI Xxxxx X. Xxxxx
148 Fee NCCI Xxxx Xxxxxxxx, Xxxx Xxxxx
149 Fee JPMCB MOR XXXXX Acquisition LLC
Xxxx Xxxxx, Xxxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxx Xxxxx, X.
Xxxxx Family Limited Partnership, Xxxxxx Family Limited
150 Fee UBS Partnership, Xxxxxx Xxxxx, Xxx Xxxxxx
151 Fee PNC Xxxxxxxx X. Xxxxxxx, Xxxxxxxx X. Xxxxxxx
Xxxxx Xxxxxxx, Xxxxxxxx Fine, Xxxxxxx Xxxxxx, Xxxxxxx
Xxxx, Xxxx Xxxxxxxxxxxx, Xxxxx Xxxxxxxx, Xxxx Xxxxx,
152 Fee NCCI Xxxxx Xxxxxx, Xxxxx Xxxx
153 Fee NCCI Xxxxxxx X. Xxxxxxxxx
154 Fee NCCI Xxxxx Xxxxxxxxx
155 Fee EHY Xxxxxx X. Xxxxxxxxxxx
155.01 Fee EHY
155.02 Fee EHY
156 Fee PNC Xxxxx Xxxxxx
157 Fee PNC Xxxxxxx Decendents Trust - E, Xxxxx Xxxxx Revocable Trust
158 Fee UBS Xxxxxxx X. Xxxxxxxxx
159 Fee JPMCB Xxxx Operating Partnership II, LP
160 Fee UBS Xxxx Xxxxx
161 Fee PNC Xxxx Xxxxx, Xxxxxxx Xxxxx
162 Fee UBS Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxx
163 Fee NCCI Xxxx Xxxxxxxx, Xxxx Xxxxx
164 Fee JPMCB Xxxxxx Xxxxx, Xxxx Xxxxx
165 Fee JPMCB Xxxxxx Xxxxx, Xxxx X. Land, Xxxxx Xxxxx
166 Fee JPMCB Xxxx Xxxxxxxxxx
167 Fee NCCI Xxxx Xxxxxx, Xxxxxxx Xxxxxx
168 Fee UBS Metro JV Fund II LLC, CLPF - Metro JV, L.P.
169 Fee NCCI Xxxxx Xxxxxx, Xxxxx Xxxxxxxxx
170 Fee JPMCB ParkBrooke Office, L.P.
171 Leasehold PNC Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx, Xx.
172 Fee JPMCB Xxxx X. Xxxxxxxxx
173 Fee PNC Xxxxxx X. Xxx
174 Various UBS Xxxxx X. Xxxxxx
174.01 Fee UBS
174.02 Leasehold UBS
175 Fee PNC Xxxxxxx Xxxxxxxxx 1993-1 Trust
176 Fee PNC Xxxx X. Xxxxx
177 Fee G JPMCB Xxxx X. Xxxxxxxxxx, Xxxx X. Xxxxxxxxxx
178 Fee PNC Xxxxxx X. Xxxxx, Xxxxx X. Xxxxx, Xxxxxx X. Xxxxx
179 Fee NCCI Xxxxxxxx Xxx
180 Fee F JPMCB Xxxxxx St. Xxxx, LLC
181 Fee UBS Xxxxxxx Xxxxxx
181.01 Fee UBS
181.02 Fee UBS
182 Fee UBS X. Xxxxx Xxxxxxxx
184 Fee PNC Xxxxxx X. Xxxxxxxx, Xx., Xxxxxx Xxxxxxxx, Xx.
185 Fee PNC Xxxx X. Xxxxx, Xxxxxxx Xxxxxxxx
186 Fee JPMCB Xxxxxxx X. Xxxxx, Xxxxx Xxxxxxx Xxxx
187 Fee EHY Xxxxxx X. Xxxx
188 Fee PNC Investment Concepts Inc.
189 Fee UBS Xxxxx Xxxxx
190 Various UBS Xxxxx X. Xxxxxx
190.01 Fee UBS
190.02 Leasehold UBS
191 Fee NCCI Xxxx Xxxxxxxx, Xxxx Xxxxx
192 Fee JPMCB Xxxxxxx X. Xxxxxxx
193 Fee PNC Xxxxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxxx Xxxxxx
194 Fee UBS Xxxxxx Xxxxxx, Xxxxxxx Xxxxxx
195 Fee NCCI Xxxx Xxxxxxxx, Xxxx Xxxxx
196 Fee EHY Xxxxxxx Xxxxxxxx
197 Fee JPMCB Xxxxxx X. X'Xxxx, Xx, Xxxxxxxxx Xxxxxxxxxx
198 Fee UBS Xxxx Xxxxx
199 Fee JPMCB Xxxxx X. Xxxxxxx, Xxxx X. Xxxxxxx
200 Fee PNC Xxxxx X. Xxxxx, Xxxx X. Xxxxx
201 Various UBS Xxxxx X. Xxxxxx
201.01 Fee UBS
201.02 Leasehold UBS
000 Xxx XXXX Xxxxxxxx Xxxx Co-op, Inc.
203 Fee EHY Xxxxxx X. Xxxxxxxxxxx
204 Fee PNC 000xx Xxxxxx Partners, LLC
205 Fee UBS Xxxxxx X. Xxxxxxx Xx.
206 Fee PNC Xxxxxx X Xxxxxxxx Xx., Xxxxxx X. Xxxxxxxx Xx.
207 Fee PNC Xxxxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxxx Xxxxxx
208 Fee JPMCB Xxxxxx Xxxxxx
Greater of
IR +2% or
209 TR+1.17%+2% Fee NCCI Xxxx X. Xxxxx
210 Fee UBS Xxxxxxx Xxxxxxxxxx
211 Fee PNC Xxxxxx Xxxxx, Xxxxxxx Xxxxx
Xxxxx X. Xxxx, Xxxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxxxx,
212 Fee EHY Xxxxx Xxxx, Xxxx Xxxxx, Xxxxx Xxxxxxx
213 Fee G JPMCB Xxxx X. Xxxxxxxxxx, Xxxx X. Xxxxxxxxxx
214 Fee JPMCB Xxxxx X. Xxxxxxx, Xxxx Xxxxxxx
215 Fee UBS Xxxx Xxxxx
216 Fee PNC Xxxx Xxxxx, Xxxx Xxxxxxx
217 Fee UBS Xxxxxxx X. Xxxxx
218 Fee F JPMCB Xxxxxx St. Xxxx, LLC
219 Fee NCCI Xxx X. Xxxxxxxxx
220 Fee PNC Xxxxx West Investments LLP
221 Fee NCCI Xxxxxxx X. Xxxxxxxxx
222 Fee NCCI Xxxxxxx X. Xxxxx
223 Fee JPMCB Xxxxxx X. Xxxxx, Xxx Xxxxx and J. Xxxx XxXxxxxx
224 Fee D JPMCB Xxxxxxxx & Associates, Inc.
225 Fee JPMCB Xxxxxx Xxxxxx
226 Fee PNC Xxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxx
227 Fee G JPMCB Xxxx X. Xxxxxxxxxx
228 Fee JPMCB Xxxxxx Xxxxxx
229 Fee G JPMCB Xxxx X. Xxxxxxxxxx; Xxxx X. Xxxxxxxxxx
UPFRONT ESCROW
--------------------------------------------------------------------------------------------------------------
Letter of Upfront CapEx Upfront Eng. Upfront Envir. Upfront TI/LC Upfront RE Upfront Ins. Upfront Other
Loan # Credit Reserve Reserve Reserve Reserve Tax Reserve Reserve Reserve
------- ----------- --------------- ------------- --------------- -------------- ------------ ------------- --------------
SEQNUM LOC_AMOUNT UPFRONT_CAPEX UPFRONT_ENG UPFRONT_ENV UPFRONT_TILC UPFRONT_TAX UPFRONT_INS UPFRONT_OTHER
1 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
2 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
3 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
3.01
3.02
3.03
3.04
3.05
3.06
3.07
3.08
4 No 0.00 0.00 0.00 1,904,109.25 0.00 0.00 0.00
4.01
4.02
4.03
4.04
4.05
4.06
4.07
4.08
4.09
5 6,000,000.0 0.00 0.00 0.00 85,976.00 143,459.00 606,607.46 21,135.99
5.01
5.02
5.03
5.04
5.05
5.06
5.07
5.08
5.09
5.10
6 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
7 No 400,000.00 0.00 0.00 39,638,796.00 592,000.00 79,000.00 21,000,000.00
8 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
9 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
10 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
11 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
12 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
13 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
14 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
15 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
16 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
17 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
18 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
19 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
19.01
19.02
19.03
19.04
19.05
19.06
19.07
19.08
19.09
19.10
19.11
19.12
19.13
20 No 0.00 0.00 0.00 0.00 172,836.57 48,422.92 12,191,427.00
21 0.00 0.00 0.00 0.00 1,060,901.00 10,108.00 0.00
22 0.00 0.00 0.00 0.00 30,680.00 791,667.00 0.00
23 No 20,000,000.00 0.00 0.00 0.00 0.00 0.00 1,000,000.00
24 No 0.00 0.00 200,000.00 7,132,087.00 128,083.28 39,601.67 9,416,000.00
25 320,000.0 0.00 0.00 0.00 0.00 150,555.49 0.00 0.00
25.01
25.02
25.03
25.04
25.05
25.06
26 No 0.00 0.00 0.00 847,544.00 271,495.96 167,752.75 0.00
27 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
28 No 2,060,000.00 0.00 0.00 5,270,000.00 0.00 0.00 0.00
29 No 0.00 0.00 25,000.00 0.00 87,045.92 8,416.67 1,542,649.00
30 No 0.00 28,400.00 0.00 0.00 30,204.58 0.00 0.00
31 No 2,285,000.00 0.00 0.00 6,925,910.00 112,146.27 127,969.40 0.00
32 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
32.01
32.02
32.03
32.04
33 No 0.00 6,875.00 0.00 0.00 32,029.95 5,278.33 0.00
34 No 0.00 25,954.00 0.00 0.00 19,125.64 4,313.33 0.00
35 No 0.00 250.00 0.00 0.00 30,825.93 2,237.00 0.00
36 No 0.00 0.00 0.00 0.00 14,610.70 2,501.33 0.00
37 No 0.00 9,175.00 0.00 0.00 17,765.62 1,436.67 0.00
38 No 0.00 0.00 0.00 0.00 14,537.24 934.00 0.00
39 No 0.00 12,700.00 0.00 0.00 11,108.72 1,647.00 0.00
40 No 0.00 7,950.00 0.00 0.00 7,363.46 1,187.33 0.00
41 No 0.00 0.00 0.00 0.00 9,272.43 1,740.00 0.00
42 No 0.00 3,125.00 0.00 0.00 6,830.12 1,011.00 0.00
43 No 0.00 0.00 0.00 0.00 66,338.51 18,057.42 0.00
44 No 0.00 0.00 0.00 0.00 404,981.55 218,189.86 2,265,600.00
45 No 0.00 0.00 0.00 0.00 0.00 0.00 2,600,000.00
46 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
47 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
48 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
49 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
50 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
51 No 0.00 0.00 0.00 0.00 61,625.00 0.00 106,666.67
52 No 0.00 968,715.00 0.00 500,000.00 249,717.65 0.00 931,285.00
52.01 No
52.02 No
52.03 No
52.04 No
52.05 No
52.06 No
53 No 200,000.00 91,188.00 25,625.00 0.00 71,295.92 0.00 580,000.00
53.01
53.02
53.03
53.04
53.05
53.06
53.07
53.08
54 No 1,073.25 0.00 0.00 0.00 129,010.85 41,318.00 1,000,000.00
55 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
56 No 1,800,000.00 0.00 0.00 3,500,000.00 0.00 0.00 0.00
57 No 13,020.83 356,500.00 0.00 0.00 0.00 300,768.00 0.00
57.01
57.02
58 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
59 No 0.00 1,335,762.00 0.00 0.00 76,741.03 42,953.00 4,445,663.00
60 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
61 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
61.01
61.02
61.03
61.04
61.05
61.06
61.07
61.08
61.09
61.10
61.11
61.12 #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.13 #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.14 #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.15 #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.16 #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.17 #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.18 #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.19 #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.20 #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A
62 No 0.00 16,875.00 0.00 0.00 62,677.62 6,656.20 0.00
63 No 0.00 9,000.00 0.00 0.00 20,517.00 3,960.00 560,000.00
64 No 0.00 0.00 0.00 0.00 69,795.90 23,048.28 0.00
65 No 0.00 0.00 1,500.00 1,500,000.00 129,358.57 41,911.08 20,000.00
65.01
65.02
65.03 No
65.04
65.05
66 No 0.00 0.00 0.00 0.00 70,687.49 44,244.00 0.00
67 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
68 No 0.00 6,250.00 12,500.00 0.00 0.00 0.00 0.00
69 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
70 No 0.00 0.00 0.00 0.00 144,030.50 0.00 0.00
71 No 0.00 86,294.00 0.00 16,453.30 53,351.79 5,663.00 2,001,878.67
71.01
71.02
71.03
71.04
71.05
71.06
71.07
71.08
71.09
72 No 0.00 168,000.00 50,000.00 0.00 100,220.40 12,566.67 0.00
73 No 1,672.00 0.00 0.00 400,000.00 109,402.00 6,391.00 300,000.00
73.01
73.02
73.03
74 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
75 No 0.00 0.00 0.00 0.00 85,672.79 66,201.41 1,659,686.00
76 No 2,237.13 0.00 0.00 500,000.00 50,415.66 13,069.33 0.00
77 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
78 No 0.00 0.00 950.00 0.00 0.00 0.00 0.00
79 No 0.00 0.00 0.00 0.00 123,145.90 21,617.33 0.00
80 No 0.00 0.00 0.00 0.00 81,123.28 0.00 0.00
81 No 0.00 0.00 0.00 200,000.00 12,534.78 16,629.07 0.00
82 No 0.00 400,000.00 0.00 0.00 67,675.00 16,307.66 500,000.00
83 No 500,000.00 0.00 0.00 0.00 74,427.25 80,395.47 795,000.00
84 No 250,000.00 0.00 0.00 535,940.00 4,204.51 20,788.50 0.00
85 No 0.00 0.00 0.00 450,000.00 56,881.22 22,722.96 2,050,000.00
86 No 29,793.83 0.00 0.00 0.00 0.00 173,333.33 2,551,658.00
87 No 0.00 0.00 0.00 0.00 38,511.67 8,184.50 0.00
88 No 0.00 0.00 0.00 0.00 7,690.00 0.00 0.00
89 No 0.00 7,125.00 0.00 0.00 60,120.78 15,261.67 1,150,000.00
90 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
91 No 0.00 0.00 0.00 67,000.00 7,844.03 12,318.75 0.00
92 No 0.00 0.00 0.00 0.00 28,399.00 0.00 0.00
93 No 0.00 0.00 500.00 0.00 40,742.75 0.00 0.00
94 No 1,726.33 51,250.00 0.00 8,631.67 63,635.42 40,619.75 0.00
95 No 0.00 0.00 0.00 200,000.00 44,908.89 70,000.00 247,900.00
96 No 0.00 0.00 0.00 300,000.00 55,035.83 18,900.44 105,847.65
97 No 0.00 0.00 0.00 0.00 18,136.83 0.00 0.00
98 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
99 No 0.00 0.00 0.00 0.00 49,250.00 16,377.99 0.00
100 No 0.00 0.00 0.00 0.00 55,075.87 10,544.30 0.00
101 No 0.00 0.00 0.00 0.00 9,497.00 2,109.00 495,000.00
102 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
103 No 0.00 0.00 0.00 300,000.00 0.00 1,834.16 0.00
104 No 0.00 0.00 0.00 0.00 194,394.42 0.00 0.00
105 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
105.01
105.02
105.03
106 No 0.00 0.00 0.00 0.00 48,916.45 0.00 0.00
107 No 0.00 0.00 0.00 0.00 105,747.69 9,933.00 547,553.00
108 No 200,400.48 0.00 0.00 0.00 43,803.50 41,250.00 0.00
109 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
110 No 0.00 0.00 0.00 0.00 7,631.00 2,312.00 310,000.00
111 No 0.00 16,875.00 0.00 60,038.12 45,468.92 6,033.25 10,240.01
112 No 0.00 0.00 0.00 0.00 32,275.80 6,975.67 0.00
113 No 400,000.00 0.00 2,188.00 600,000.00 21,138.24 39,042.85 185,000.00
114 No 0.00 0.00 0.00 0.00 31,209.50 4,637.57 0.00
115 No 0.00 0.00 0.00 0.00 7,000.00 10,777.25 0.00
116 No 46,035.33 0.00 0.00 0.00 58,979.81 43,057.35 0.00
117 No 0.00 0.00 0.00 322,371.00 45,416.66 10,696.00 0.00
118 No 0.00 0.00 0.00 0.00 220,555.89 0.00 0.00
119 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
119.01
119.02
119.03
120 4,500,000.0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
121 No 436.67 0.00 0.00 300,000.00 0.00 10,482.96 0.00
122 No 0.00 20,000.00 0.00 0.00 26,499.78 38,299.00 0.00
122.01
122.02
123 500,000.0 0.00 0.00 0.00 0.00 26,520.97 26,171.25 0.00
124 No 0.00 0.00 0.00 0.00 0.00 8,525.25 0.00
125 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
126 No 0.00 0.00 0.00 0.00 14,000.00 25,764.00 0.00
127 No 0.00 0.00 0.00 0.00 47,166.66 12,521.25 0.00
128 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
128.01
128.02
129 No 0.00 0.00 0.00 0.00 48,171.79 0.00 0.00
130 No 0.00 0.00 0.00 0.00 21,767.13 0.00 0.00
131 No 0.00 28,500.00 21,250.00 0.00 151,819.36 34,846.00 0.00
132 No 0.00 17,408.75 0.00 0.00 59,663.20 7,376.00 0.00
133 No 876.17 0.00 0.00 3,285.63 109,536.00 17,195.50 0.00
134 No 0.00 0.00 0.00 35,846.00 168,825.00 71,310.33 0.00
135 No 1,685.55 12,467.00 0.00 0.00 58,333.31 5,725.44 0.00
136 No 0.00 8,750.00 0.00 0.00 6,297.00 1,241.00 0.00
137 No 0.00 0.00 0.00 0.00 4,504.94 3,635.50 0.00
138 No 30,000.00 0.00 0.00 125,000.00 21,591.40 6,312.27 109,720.00
139 No 0.00 0.00 0.00 0.00 30,313.74 0.00 0.00
140 No 0.00 0.00 0.00 0.00 64,183.96 3,437.00 0.00
141 No 0.00 0.00 0.00 0.00 29,883.25 12,017.50 0.00
143 No 0.00 0.00 0.00 0.00 12,622.62 2,160.97 48,282.06
144 No 0.00 0.00 0.00 375,000.00 60,455.92 0.00 0.00
145 No 900,000.00 0.00 0.00 0.00 52,458.48 10,620.75 0.00
146 No 0.00 0.00 0.00 50,000.00 0.00 0.00 1,693,948.00
147 No 12,105.00 0.00 0.00 0.00 0.00 0.00 42,521.72
148 No 0.00 0.00 0.00 0.00 32,194.80 8,122.50 0.00
149 No 0.00 0.00 0.00 0.00 16,806.00 1,448.42 100,000.00
150 No 118.75 0.00 0.00 0.00 19,244.52 1,416.44 2,300,000.00
151 No 0.00 0.00 0.00 0.00 17,740.30 3,383.33 0.00
152 No 0.00 10,875.00 0.00 0.00 25,741.36 11,325.67 0.00
153 No 7,500.00 0.00 0.00 35,000.00 18,790.47 4,199.22 0.00
154 No 1,480,000.00 0.00 0.00 0.00 0.00 4,148.00 0.00
155 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
155.01 No
155.02 No
156 No 0.00 0.00 0.00 0.00 5,507.05 1,927.09 0.00
157 No 0.00 48,188.00 0.00 0.00 3,018.34 9,586.66 0.00
158 No 0.00 0.00 0.00 75,000.00 30,398.33 5,663.00 0.00
159 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
160 No 0.00 0.00 0.00 0.00 12,198.85 19,630.42 0.00
161 No 0.00 0.00 0.00 0.00 7,389.84 15,527.00 0.00
162 No 1,113.75 11,125.00 0.00 0.00 14,320.40 9,312.00 0.00
163 No 0.00 0.00 0.00 0.00 28,095.43 4,511.33 0.00
164 No 0.00 20,625.00 0.00 0.00 35,380.27 9,290.00 650,000.00
165 No 0.00 0.00 0.00 0.00 33,600.00 3,389.50 0.00
166 No 0.00 0.00 0.00 0.00 25,894.81 13,292.58 0.00
167 No 0.00 5,625.00 0.00 0.00 4,565.34 4,560.33 0.00
168 No 910.53 0.00 0.00 16,902.50 0.00 0.00
169 No 0.00 16,500.00 6,250.00 0.00 39,077.77 4,108.30 11,975.00
170 No 583.00 0.00 0.00 85,999.59 9,932.05 1,585.00 47,000.00
171 No 0.00 0.00 0.00 0.00 47,145.84 17,256.50 0.00
172 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
173 No 0.00 0.00 0.00 0.00 3,116.00 3,497.00 0.00
174 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
174.01
174.02
175 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
176 No 0.00 0.00 1,000.00 0.00 43,097.73 4,006.66 0.00
177 No 0.00 0.00 0.00 0.00 36,037.44 10,197.00 0.00
178 No 0.00 0.00 0.00 0.00 22,657.24 0.00 0.00
179 No 0.00 0.00 0.00 0.00 0.00 2,446.26 0.00
180 No 0.00 0.00 0.00 0.00 42,410.56 0.00 0.00
181 No 166.30 0.00 0.00 1,247.25 14,359.17 0.00 0.00
181.01
181.02
182 No 1,330.73 163,750.00 0.00 8,871.50 32,124.33 27,300.00 350,000.00
184 No 0.00 24,625.00 9,000.00 0.00 18,269.26 4,550.00 150,000.00
185 No 68,081.00 0.00 1,000.00 0.00 37,516.44 3,683.75 0.00
186 100,000.0 0.00 0.00 0.00 0.00 5,493.44 5,616.50 0.00
187 No 1,091.66 0.00 0.00 0.00 44,364.00 2,468.00 0.00
188 No 0.00 0.00 0.00 0.00 8,476.89 10,277.00 0.00
189 No 0.00 0.00 25,000.00 0.00 0.00 0.00 0.00
190 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
190.01
190.02
191 No 0.00 0.00 0.00 0.00 18,278.66 3,103.33 0.00
192 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
193 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
194 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
195 No 0.00 0.00 0.00 0.00 22,439.95 3,167.50 0.00
196 No 200.75 0.00 0.00 1,204.50 9,551.78 2,935.68 0.00
197 No 0.00 0.00 0.00 0.00 13,679.17 1,824.33 0.00
198 No 0.00 0.00 0.00 0.00 24,369.25 5,570.58 0.00
199 No 0.00 0.00 0.00 0.00 12,716.34 4,161.75 0.00
200 No 0.00 0.00 0.00 60,000.00 10,167.00 1,060.00 0.00
201 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
201.01
201.02
202 No 0.00 0.00 0.00 0.00 12,131.84 1,673.33 112,800.00
203 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
204 No 0.00 0.00 0.00 0.00 3,633.33 4,021.67 0.00
205 100,000.0 320.79 0.00 0.00 0.00 10,895.00 11,343.00 0.00
206 No 0.00 0.00 0.00 0.00 17,545.44 15,302.50 0.00
207 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
208 No 0.00 6,600.00 0.00 0.00 10,163.49 0.00 0.00
209 No 0.00 0.00 0.00 460.83 0.00 0.00 0.00
210 No 170.00 0.00 0.00 1,133.33 3,713.08 5,738.25 74,050.00
211 No 0.00 0.00 0.00 0.00 11,137.50 7,854.00 96,937.50
212 No 521.00 10,000.00 0.00 3,255.00 24,020.50 1,132.00 0.00
213 No 0.00 0.00 0.00 0.00 45,567.71 5,021.00 0.00
214 No 0.00 0.00 0.00 0.00 21,565.19 2,381.67 0.00
215 No 0.00 0.00 0.00 0.00 10,924.26 10,446.33 0.00
216 No 0.00 0.00 0.00 0.00 10,575.76 0.00 3,000.00
217 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
218 No 0.00 0.00 0.00 0.00 27,923.13 0.00 0.00
219 No 0.00 0.00 0.00 0.00 18,136.25 904.33 0.00
220 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
221 No 0.00 0.00 0.00 0.00 7,951.46 0.00 0.00
222 No 0.00 0.00 0.00 0.00 8,240.29 7,439.33 0.00
223 No 0.00 0.00 0.00 0.00 18,016.34 4,261.25 0.00
224 No 0.00 0.00 0.00 0.00 12,622.19 0.00 0.00
225 No 0.00 0.00 0.00 0.00 9,212.08 0.00 0.00
226 No 0.00 0.00 0.00 0.00 13,848.33 570.33 0.00
227 No 0.00 0.00 0.00 0.00 5,617.94 2,069.50 0.00
228 No 0.00 0.00 0.00 0.00 6,202.46 0.00 0.00
229 No 0.00 0.00 0.00 0.00 10,916.72 1,970.50 0.00
MONTHLY ESCROW
------------------------------------------------------------------------------------------------------------
Monthly Monthly Monthly Monthly
Capex Envir. TI/LC RE Tax Monthly Ins.
Loan # Reserve Reserve Reserve Reserve Reserve Monthly Other Reserve Grace Period
------- ----------- ----------- ----------- ----------- ----------------- ---------------------------------------- ------------
SEQNUM MONTHLY_CAP MONTHLY_ENV MONTHLY_TILC MONTHLY_TAX MONTHLY_INS MONTHLY_OTHER GRACE
1 0.00 0.00 0.00 0.00 0.00 0.00 0
2 0.00 0.00 0.00 0.00 0.00 0.00 0
3 0.00 0.00 0.00 0.00 0.00 0.00 3
3.01 3
3.02 3
3.03 3
3.04 3
3.05 3
3.06 3
3.07 3
3.08 3
4 0.00 0.00 0.00 0.00 0.00 0.00 5
4.01 5
4.02 5
4.03 5
4.04 5
4.05 5
4.06 5
4.07 5
4.08 5
4.09 5
5 0.00 0.00 59135.00 142453.00 75825.93 9567.99 0
5.01 0
5.02 0
5.03 0
5.04 0
5.05 0
5.06 0
5.07 0
5.08 0
5.09 0
5.10 0
6 0.00 0.00 0.00 0.00 0.00 0.00 0
7 31250.00 0.00 132809.00 250000.00 36533.00 0.00 0
8 0.00 0.00 0.00 0.00 0.00 0.00 0
9 0.00 0.00 0.00 0.00 0.00 0.00 0
10 0.00 0.00 0.00 0.00 0.00 0.00 0
11 0.00 0.00 0.00 0.00 0.00 0.00 0
12 0.00 0.00 0.00 0.00 0.00 0.00 0
13 0.00 0.00 0.00 0.00 0.00 0.00 0
14 0.00 0.00 0.00 0.00 0.00 0.00 0
15 0.00 0.00 0.00 0.00 0.00 0.00 0
16 0.00 0.00 0.00 0.00 0.00 0.00 0
17 0.00 0.00 0.00 0.00 0.00 0.00 0
18 0.00 0.00 0.00 0.00 0.00 0.00 0
19 0.00 0.00 0.00 0.00 0.00 0.00 7
19.01 7
19.02 7
19.03 7
19.04 7
19.05 7
19.06 7
19.07 7
19.08 7
19.09 7
19.10 7
19.11 7
19.12 7
19.13 7
20 8280.84 0.00 0.00 86418.29 16140.97 0.00 0
21 0.00 0.00 0.00 176817.00 10108.33 0.00 0
22 0.00 0.00 0.00 15340.00 79167.00 0.00 0
23 0.00 0.00 0.00 0.00 0.00 0.00 0
24 2320.50 0.00 23205.08 32020.82 7920.33 0.00 0
25 8048.43 0.00 0.00 150555.49 0.00 0.00 0
25.01 0
25.02 0
25.03 0
25.04 0
25.05 0
25.06 0
26 6523.83 0.00 0.00 67873.99 15250.25 0.00 0
27 0.00 0.00 0.00 0.00 0.00 0.00 5
28 0.00 0.00 0.00 0.00 0.00 0.00 0
29 3107.42 0.00 0.00 87045.92 8416.67 0.00 0
30 8333.33 0.00 0.00 30204.58 0.00 0.00 0
31 0.00 0.00 0.00 112146.27 14116.59 0.00 0
32 0.00 0.00 0.00 0.00 0.00 0.00 0
32.01 0
32.02 0
32.03 0
32.04 0
33 4583.33 0.00 0.00 5338.33 1319.58 0.00 0
34 2916.67 0.00 0.00 3187.61 1078.33 0.00 0
35 2083.33 0.00 0.00 5137.66 559.25 0.00 0
36 1333.33 0.00 0.00 2435.12 625.31 0.00 0
37 1187.50 0.00 0.00 2960.94 359.17 0.00 0
38 563.71 0.00 0.00 2422.87 233.50 0.00 0
39 1166.67 0.00 0.00 1851.46 411.75 0.00 0
40 916.67 0.00 0.00 1227.25 296.83 0.00 0
41 833.33 0.00 0.00 1545.41 435.00 0.00 0
42 750.00 0.00 0.00 1138.35 252.75 0.00 0
43 2645.83 0.00 0.00 6633.85 1641.58 0.00 0
44 0.00 0.00 0.00 57854.51 17455.19 0.00 5
45 0.00 0.00 0.00 0.00 0.00 0.00 0
46 0.00 0.00 0.00 0.00 0.00 0.00 0
47 0.00 0.00 0.00 0.00 0.00 0.00 0
48 0.00 0.00 0.00 0.00 0.00 0.00 0
49 0.00 0.00 0.00 0.00 0.00 0.00 0
50 0.00 0.00 0.00 0.00 0.00 0.00 0
51 0.00 0.00 0.00 20541.67 0.00 13333.33 0
52 13500.00 0.00 0.00 50419.64 4097.17 0.00 0
52.01 0
52.02 0
52.03 0
52.04 0
52.05 0
52.06 0
53 0.00 0.00 0.00 35647.96 13788.00 0.00 0
53.01 0.00
53.02 0.00
53.03 0.00
53.04 0.00
53.05 0.00
53.06 0.00
53.07 0.00
53.08 0.00
54 1073.25 0.00 0.00 25802.17 4131.75 0.00 0
55 0.00 0.00 0.00 0.00 0.00 0.00 5
56 0.00 0.00 0.00 0.00 0.00 0.00 0
57 13020.83 0.00 0.00 77706.42 50128.00 0.00 0
57.01 0
57.02 0
58 0.00 0.00 7800.00 0.00 0.00 0.00 7
59 3125.50 0.00 0.00 76741.03 7158.00 0.00 5
60 0.00 0.00 0.00 0.00 0.00 0.00 5
61 0.00 0.00 0.00 0.00 0.00 0.00 5
61.01 5
61.02 5
61.03 5
61.04 5
61.05 5
61.06 5
61.07 5
61.08 5
61.09 5
61.10 5
61.11 5
61.12 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.13 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.14 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.15 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.16 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.17 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.18 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.19 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.20 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
62 2115.04 0.00 0.00 10446.27 1109.36 0.00 5
63 6458.33 0.00 0.00 20517.00 3960.00 0.00 0
64 5200.00 0.00 0.00 23265.30 2560.92 0.00 0
65 6449.42 0.00 25000.00 43119.52 4450.58 0.00 5
65.01 5
65.02 5
65.03 5
65.04 5
65.05 5
66 0.00 0.00 0.00 14137.49 4916.00 0.00 7
67 49651.00 0.00 0.00 0.00 0.00 0.00 0
68 0.00 0.00 0.00 0.00 0.00 0.00 0
69 0.00 0.00 0.00 0.00 0.00 0.00 0
70 0.00 0.00 0.00 48010.17 0.00 0.00 0
71 2428.79 0.00 16453.30 12961.08 943.83 0.00 0
71.01 0
71.02 0
71.03 0
71.04 0
71.05 0
71.06 0
71.07 0
71.08 0
71.09 0
72 11000.00 0.00 0.00 50110.20 12566.67 0.00 0
73 1672.00 0.00 0.00 21880.42 2130.00 0.00 0
73.01 0
73.02 0
73.03 0
74 0.00 0.00 0.00 0.00 0.00 0.00 0
75 2342.33 0.00 11000.00 21418.19 5092.41 0.00 7
76 2237.13 0.00 0.00 10083.13 3267.33 0.00 0
77 0.00 0.00 0.00 0.00 0.00 0.00 0
78 0.00 0.00 0.00 0.00 0.00 0.00 7
79 10250.00 0.00 0.00 20524.32 5404.33 0.00 0
80 0.00 0.00 0.00 13520.55 0.00 0.00 0
81 801.33 0.00 5342.17 6267.39 4935.23 0.00 0
82 5750.00 0.00 0.00 33837.50 8153.83 0.00 5
83 0.00 0.00 0.00 24809.08 8039.55 0.00 0
84 944.00 0.00 5035.00 4204.51 2309.83 0.00 0
85 0.00 0.00 5589.67 8264.79 1893.58 0.00 0
86 29793.83 0.00 0.00 11710.81 21666.67 0.00 0
87 0.00 0.00 0.00 3851.17 4092.25 0.00 5
88 0.00 0.00 0.00 7690.00 0.00 0.00 0
89 8025.00 0.00 0.00 15030.19 7630.83 0.00 0
90 0.00 0.00 0.00 0.00 0.00 0.00 0
91 733.00 0.00 0.00 2614.68 2463.75 0.00 0
92 0.00 0.00 0.00 28398.75 0.00 0.00 0
93 1751.42 0.00 0.00 0.00 0.00 0.00 5
94 1726.33 0.00 8631.67 63635.42 4061.98 0.00 0
95 1400.25 0.00 9335.25 22454.45 5833.33 0.00 0
96 2000.00 0.00 12500.00 18345.28 1890.04 0.00 0
97 0.00 0.00 0.00 18136.83 0.00 0.00 0
98 0.00 0.00 0.00 0.00 0.00 0.00 0
99 4800.00 0.00 0.00 9850.00 5459.33 0.00 0
100 3467.00 0.00 0.00 27537.94 2108.86 42500.00 7
101 3666.67 0.00 0.00 9497.00 2109.00 0.00 0
Lease Termination Payments
102 0.00 0.00 0.00 0.00 0.00 in excess of $50,000 0
103 2203.50 0.00 0.00 21048.79 917.08 0.00 5
$9,538.25
the first
month, 3%
of gross
revenues
104 thereafter. 0.00 0.00 0.00 0.00 0.00 5
105 0.00 0.00 0.00 0.00 0.00 0.00 0
105.01 0
105.02 0
105.03
106 0.00 0.00 6150.00 9783.29 0.00 0.00 7
107 8229.17 0.00 0.00 26436.92 4966.50 0.00 0
108 0.00 0.00 0.00 14601.17 3750.00 0.00 0
109 0.00 0.00 0.00 0.00 0.00 0.00 0
110 5166.67 0.00 0.00 7631.00 2312.00 0.00 0
111 1661.54 0.00 6000.00 11367.23 2011.08 0.00 0
112 1083.08 0.00 0.00 16137.90 1743.92 0.00 7
113 0.00 0.00 0.00 10569.12 3549.35 0.00 0
114 387.00 0.00 1975.00 15604.75 1112.18 0.00 0
115 969.67 0.00 3333.33 7000.00 979.75 0.00 5
116 23017.67 0.00 0.00 19659.94 8611.47 0.00 0
117 948.83 0.00 9166.67 9083.33 1528.00 0.00 7
118 1817.25 0.00 0.00 0.00 0.00 0.00 5
119 0.00 0.00 0.00 0.00 0.00 0.00 0
119.01 0
119.02 0
119.03 0
120 1130.00 0.00 0.00 0.00 0.00 0.00 5
121 436.67 0.00 0.00 0.00 873.58 0.00 0
122 0.00 0.00 0.00 8833.26 4659.08 0.00 0
122.01 0
122.02 0
123 4369.21 0.00 0.00 13260.49 2907.92 0.00 7
124 4480.00 0.00 0.00 7980.92 2841.75 0.00 0
125 0.00 0.00 0.00 0.00 0.00 0.00 0
$5,676.93
the first
month, 2%
of gross
revenues
for 2007,
2.5% for
2008, 3%
for 2009,
3.5% for
2010, and
4%
126 thereafter 0.00 0.00 7000.00 0.00 0.00 5
$4,967.65
the first
month, 4%
of gross
revenues
127 thereafter 0.00 0.00 9433.33 2504.25 0.00 5
128 0.00 0.00 0.00 0.00 0.00 0.00 0
128.01 0
128.02 0
129 0.00 0.00 0.00 8028.63 0.00 0.00 7
130 654.49 0.00 1308.98 4353.43 0.00 0.00 0
131 4208.33 0.00 0.00 18977.42 4355.75 0.00 0
132 2541.67 0.00 0.00 7457.90 922.00 0.00 0
133 876.17 0.00 3285.63 9128.00 2456.50 0.00 0
134 441.33 0.00 4166.67 18758.33 0.00 0.00 5
135 1685.55 0.00 0.00 8333.33 817.92 0.00 0
136 0.00 0.00 0.00 1297.17 1241.35 0.00 0
137 0.00 0.00 0.00 4504.94 3635.50 0.00 0
138 0.00 0.00 0.00 4318.28 901.75 0.00 0
139 0.00 0.00 0.00 10104.58 0.00 0.00 0
140 0.00 0.00 0.00 10697.33 1145.67 0.00 0
141 0.00 0.00 0.00 9961.08 1092.50 0.00 0
143 0.00 0.00 0.00 4207.54 1080.49 0.00 0
144 0.00 0.00 13393.00 12091.18 0.00 0.00 7
145 4167.00 0.00 0.00 8743.08 3540.25 0.00 0
146 166.00 0.00 1665.00 0.00 0.00 0.00 7
147 0.00 0.00 0.00 0.00 0.00 0.00 0
148 3125.58 0.00 0.00 8048.70 1624.50 0.00 0
149 138.00 0.00 2916.67 4201.50 206.92 0.00 7
150 118.75 0.00 0.00 6414.84 477.13 0.00 0
151 946.67 0.00 0.00 0.00 845.83 0.00 5
152 4250.00 0.00 0.00 12870.68 5662.83 0.00 0
153 0.00 0.00 0.00 3131.75 524.90 0.00 0
154 0.00 0.00 0.00 8583.33 2074.00 0.00 0
155 0.00 0.00 0.00 0.00 0.00 0.00 0
155.01 0
155.02 0
156 314.50 0.00 3000.00 3823.51 385.42 0.00 5
157 515.17 0.00 2000.00 3018.34 1198.33 0.00 5
158 803.61 0.00 0.00 15199.17 809.00 0.00 0
159 0.00 0.00 0.00 0.00 0.00 0.00 8
160 0.00 0.00 0.00 12198.85 1784.58 0.00 0
161 762.08 0.00 0.00 0.00 0.00 0.00 5
162 1113.75 0.00 0.00 2864.08 1552.00 0.00 0
163 3250.00 0.00 0.00 7023.86 2255.67 0.00 0
164 0.00 0.00 0.00 5896.71 929.00 0.00 7
165 439.03 0.00 0.00 11200.00 1129.83 0.00 7
166 475.50 0.00 2218.83 8631.60 1208.42 0.00 7
167 5785.33 0.00 0.00 4565.34 2280.17 0.00 0
168 910.53 0.00 0.00 5634.17 0.00 0.00 0
169 666.67 0.00 0.00 6512.96 1583.00 0.00 0
170 583.00 0.00 0.00 4966.03 528.33 0.00 7
$11,314.04
for the
first
month, 4%
of gross
revenues
171 thereafter 0.00 0.00 9429.17 0.00 0.00 5
172 0.00 0.00 0.00 0.00 0.00 0.00 7
173 1117.33 0.00 4166.67 3115.68 1165.67 0.00 5
174 0.00 0.00 0.00 0.00 0.00 0.00 0
174.01 0
174.02 0
175 0.00 0.00 0.00 0.00 0.00 0.00 5
176 618.42 0.00 2083.33 6216.48 801.33 0.00 5
177 1264.38 0.00 0.00 6006.24 1699.50 0.00 7
178 1066.42 0.00 0.00 5749.72 0.00 0.00 5
179 1453.54 0.00 106.92 6124.30 1223.13 0.00 0
180 0.00 0.00 8335.00 8482.11 0.00 0.00 7
181 166.30 0.00 1247.25 3589.79 0.00 0.00 0
181.01 0
181.02 0
182 1330.73 0.00 8871.50 8031.08 13650.00 0.00 0
184 1298.33 0.00 4166.67 6089.75 455.00 0.00 5
185 721.42 0.00 2083.33 6459.70 736.75 0.00 5
186 1311.92 0.00 2000.00 2746.72 936.08 0.00 7
187 1091.66 0.00 0.00 14788.00 2468.00 0.00 0
188 916.67 0.00 0.00 4238.45 856.42 0.00 5
189 0.00 0.00 0.00 0.00 0.00 0.00 0
190 0.00 0.00 0.00 0.00 0.00 0.00 0
190.01 0
190.02 0
191 2333.00 0.00 0.00 4569.67 1551.67 0.00 0
192 0.00 0.00 0.00 0.00 0.00 0.00 7
193 3500.00 0.00 0.00 4603.16 2868.19 0.00 5
194 0.00 0.00 0.00 0.00 0.00 0.00 0
195 2697.92 0.00 0.00 5609.99 1583.75 0.00 0
196 200.75 0.00 1204.50 4775.89 733.92 0.00 0
197 616.00 0.00 2000.00 2735.83 912.17 0.00 7
198 0.00 0.00 0.00 8123.08 506.42 0.00 0
199 0.00 0.00 1666.67 1412.93 462.42 0.00 7
200 1205.58 0.00 2500.00 10166.50 264.92 0.00 5
201 0.00 0.00 0.00 0.00 0.00 0.00 0
201.01 0
201.02 0
202 0.00 0.00 0.00 6065.92 1673.83 0.00 0
203 0.00 0.00 0.00 0.00 0.00 0.00 0
204 200.67 0.00 1000.00 3633.33 402.17 0.00 5
205 320.79 0.00 0.00 2179.00 1260.33 0.00 0
206 1127.00 0.00 4166.67 5777.36 1530.25 0.00 5
207 0.00 0.00 0.00 3062.36 1863.80 0.00 5
208 0.00 0.00 4167.00 2540.86 0.00 0.00 7
209 138.25 0.00 460.83 0.00 0.00 0.00 0
210 170.00 0.00 1133.33 1856.54 637.58 0.00 0
$4,743.79
the first
month, 4%
of gross
revenues $793.50; On 11/1/09 and 11/1/14
211 thereafter 0.00 0.00 4712.50 0.00 shall increase by 15% 5
212 521.00 0.00 3255.00 3431.50 566.00 0.00 0
213 1039.00 0.00 0.00 7594.62 836.83 0.00 7
214 340.00 0.00 2083.00 3594.20 595.42 0.00 7
215 0.00 0.00 0.00 12444.11 949.67 0.00 0
216 0.00 0.00 0.00 5287.92 0.00 0.00 5
217 0.00 0.00 0.00 0.00 0.00 0.00 0
218 0.00 0.00 0.00 5584.63 0.00 0.00 7
219 0.00 0.00 0.00 3627.25 452.17 0.00 0
220 0.00 0.00 0.00 0.00 0.00 0.00 5
221 471.25 0.00 1625.00 2650.49 0.00 0.00 0
222 3464.70 0.00 0.00 2060.07 929.92 0.00 10
223 1451.91 0.00 0.00 4504.09 608.75 0.00 7
224 0.00 0.00 0.00 2103.69 0.00 0.00 7
225 220.00 0.00 1400.00 2303.02 0.00 0.00 7
226 56.00 0.00 0.00 3462.23 142.58 0.00 5
227 725.33 0.00 0.00 936.32 344.75 0.00 7
228 0.00 0.00 1042.00 1550.62 0.00 0.00 7
229 442.92 0.00 0.00 1819.45 328.42 0.00 7
xxxx://xxxxxxx.xxxxxxxxx.xxx/xxxxxx/xxxx/0000/xxxxxx000x
Remaining
Amortization
Interest Term for
Lockbox Defeasance Accrual Final Balloon
Loan # In-place Property Type Permitted Period Loan Group Maturity Date Loans
------- ---------------- ---------------- ----------- ------------ ----------- -------------- ------------
SEQNUM LOCK_BOX_IN_PLACE PROPTYPE DEF_ALLOWED ACCRUAL_TYPE LOAN_GROUP FINAL_MAT_DATE AM_TERM
1 Yes Retail Yes Actual/360 1
2 Yes Office Yes Actual/360 1
3 Yes Office Yes Actual/360 1
3.01 Office 1
3.02 Office 1
3.03 Office 1
3.04 Office 1
3.05 Office 1
3.06 Office 1
3.07 Office 1
3.08 Office 1
4 No Office No Actual/360 1
4.01 Office 1
4.02 Office 1
4.03 Office 1
4.04 Office 1
4.05 Office 1
4.06 Office 1
4.07 Office 1
4.08 Office 1
4.09 Office 1
5 Yes Industrial Yes Actual/360 1
5.01 Industrial 1
5.02 Industrial 1
5.03 Industrial 1
5.04 Industrial 1
5.05 Industrial 1
5.06 Industrial 1
5.07 Industrial 1
5.08 Industrial 1
5.09 Industrial 1
5.10 Industrial 1
6 Yes Retail Yes Actual/360 3
7 Yes Mixed Use Yes Actual/360 3
8 Yes Office Yes Actual/360 3
9 Yes Office Yes Actual/360 3
10 Yes Industrial Yes Actual/360 3
11 Yes Multifamily Yes Actual/360 3
12 Yes Industrial Yes Actual/360 3
13 Yes Industrial Yes Actual/360 3
14 Yes Industrial Yes Actual/360 3
15 Yes Retail Yes Actual/360 3
16 Yes Industrial Yes Actual/360 3
17 Yes Industrial Yes Actual/360 3
18 Yes Industrial Yes Actual/360 3
19 Yes Retail Yes Actual/360 3
19.01 Retail 3
19.02 Retail 3
19.03 Retail 3
19.04 Retail 3
19.05 Retail 3
19.06 Retail 3
19.07 Retail 3
19.08 Retail 3
19.09 Retail 3
19.10 Retail 3
19.11 Retail 3
19.12 Retail 3
19.13 Retail 3
20 Yes Retail No Actual/360 3
21 Yes Office Yes Actual/360 3
22 Yes Mixed Use Yes Actual/360 1 360
23 Yes Hotel Yes Actual/360 1
24 No Retail Yes Actual/360 1
25 Yes Office Yes Actual/360 1
25.01 Office 1
25.02 Office 1
25.03 Office 1
25.04 Office 1
25.05 Office 1
25.06 Office 1
26 No Office No Actual/360 1
27 Yes Office Yes Actual/360 1
28 Yes Office Yes Actual/360 3
29 Yes Office Yes Actual/360 1
30 Yes Multifamily Yes Actual/360 3
31 Yes Office Yes Actual/360 3
32 Yes Industrial Yes Actual/360 1
32.01 Industrial 1
32.02 Industrial 1
32.03 Industrial 1
32.04 Industrial 1
33 No Multifamily Yes Actual/360 1 360
34 No Multifamily Yes Actual/360 1 360
35 No Multifamily Yes Actual/360 1 360
36 No Multifamily Yes Actual/360 1 360
37 No Multifamily Yes Actual/360 1 360
38 No Office Yes Actual/360 1 360
39 No Multifamily Yes Actual/360 1 360
40 No Multifamily Yes Actual/360 1 360
41 No Multifamily Yes Actual/360 1 360
42 No Multifamily Yes Actual/360 1 360
43 No Multifamily Yes Actual/360 1 360
44 No Multifamily Yes Actual/360 2
45 Yes Multifamily Yes Actual/360 3
46 Yes Industrial Yes Actual/360 3
47 Yes Industrial Yes Actual/360 3
48 Yes Office Yes Actual/360 3
49 Yes Industrial Yes Actual/360 3
50 Yes Office Yes Actual/360 3
51 No Multifamily Yes Actual/360 2
52 Yes Retail Yes Actual/360 1 360
52.01 Retail 1 360
52.02 Retail 1 360
52.03 Retail 1 360
52.04 Retail 1 360
52.05 Retail 1 360
52.06 Retail 1 360
53 Yes Multifamily Yes Actual/360 3
53.01 Multifamily 3
53.02 Multifamily 3
53.03 Multifamily 3
53.04 Multifamily 3
53.05 Multifamily 3
53.06 Multifamily 3
53.07 Multifamily 3
53.08 Multifamily 3
54 No Mixed Use Yes Actual/360 1 360
55 No Retail Yes Actual/360 3
56 Yes Office Yes Actual/360 1
57 Yes Multifamily No Actual/360 2
57.01 Multifamily 2
57.02 Multifamily 2
58 No Retail Yes Actual/360 1
59 No Retail Yes Actual/360 1
60 No Industrial No Actual/360 3
61 Yes Industrial Yes Actual/360 1
61.01 Industrial 1
61.02 Industrial 1
61.03 Industrial 1
61.04 Industrial 1
61.05 Industrial 1
61.06 Industrial 1
61.07 Industrial 1
61.08 Industrial 1
61.09 Industrial 1
61.10 Industrial 1
61.11 Industrial 1
61.12 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.13 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.14 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.15 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.16 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.17 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.18 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.19 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
61.20 #N/A #N/A #N/A #N/A #N/A #N/A #N/A
62 No Mixed Use Yes Actual/360 1 360
63 No Multifamily Yes Actual/360 2
64 No Multifamily Yes Actual/360 2
65 NAP Office Yes Actual/360 1 300
65.01 Office 1 300
65.02 Office 1 300
65.03 Office 1 300
65.04 Office 1 300
65.05 Office 1 300
66 No Office Yes Actual/360 3 300
67 No Hotel Yes Actual/360 1 360
68 No Hotel Yes Actual/360 3 360
69 Yes Retail Yes Actual/360 3
70 No Industrial Yes Actual/360 1
71 Yes Industrial Yes Actual/360 1 360
71.01 Industrial 1 360
71.02 Industrial 1 360
71.03 Industrial 1 360
71.04 Industrial 1 360
71.05 Industrial 1 360
71.06 Industrial 1 360
71.07 Industrial 1 360
71.08 Industrial 1 360
71.09 Industrial 1 360
72 Yes Multifamily Yes Actual/360 2
73 No Various Yes Actual/360 1
73.01 Office 1
73.02 Retail 1
73.03 Office 1
74 No Multifamily Yes Actual/360 3
75 No Office Yes Actual/360 3
76 Yes Office Yes Actual/360 1
77 No Retail Yes Actual/360 1
78 Yes Hotel Yes Actual/360 3
79 No Multifamily Yes Actual/360 2 360
80 Yes Retail Yes Actual/360 1
81 Yes Retail Yes Actual/360 1
82 NAP Multifamily No Actual/360 2 360
83 No Multifamily Yes Actual/360 2 360
84 No Mixed Use Yes Actual/360 3
85 No Retail Yes Actual/360 1 360
86 Yes Hotel No Actual/360 3
87 NAP Multifamily No Actual/360 2 360
88 No Multifamily Yes Actual/360 1
89 Yes Multifamily No Actual/360 3
90 No Office No 30/360 1 02/11/37
91 Yes Retail Yes Actual/360 1 420
92 No Office Yes Actual/360 1
93 NAP Office No Actual/360 1 360
94 No Office Yes Actual/360 1
95 Yes Office Yes Actual/360 1 360
96 Yes Office Yes Actual/360 1 02/11/27 240
97 No Office Yes Actual/360 1
98 Yes Office Yes Actual/360 1 240
99 No Multifamily Yes Actual/360 2 360
100 No Multifamily Yes Actual/360 2
101 Yes Multifamily Yes Actual/360 2
102 No Retail Yes Actual/360 1
103 NAP Office No Actual/360 1 360
104 NAP Hotel No Actual/360 1 360
105 Yes Retail Yes Actual/360 1
105.01 Retail 1
105.02 Retail 1
105.03
106 No Office Yes Actual/360 3
107 No Multifamily Yes Actual/360 2 360
108 No Multifamily Yes Actual/360 2 360
109 No Retail Yes Actual/360 1
110 Yes Multifamily Yes Actual/360 2
111 Yes Office Yes Actual/360 3
112 No Retail Yes Actual/360 1 360
113 Yes Office No Actual/360 1
114 No Retail Yes Actual/360 1
115 NAP Office Yes Actual/360 1 360
116 Yes Hotel Yes Actual/360 1 300
117 No Office No Actual/360 3 360
118 NAP Retail No Actual/360 1 360
119 Yes Retail Yes Actual/360 1
119.01 Retail 1
119.02 Retail 1
119.03 Retail 1
120 Yes Industrial Yes Actual/360 1 360
121 Yes Office Yes Actual/360 1 360
122 No Hotel Yes Actual/360 3 300
122.01 Hotel 3 300
122.02 Hotel 3 300
123 No Retail No Actual/360 3 360
124 No Multifamily Yes Actual/360 3
125 No Retail No 30/360 3
126 NAP Hotel No Actual/360 3 360
127 NAP Hotel No Actual/360 1 360
128 Yes Retail Yes Actual/360 1
128.01 Retail 1
128.02 Retail 1
129 No Office Yes Actual/360 3
130 No Industrial Yes Actual/360 3 360
131 No Multifamily Yes Actual/360 2 360
132 No Multifamily Yes Actual/360 2 360
133 No Office Yes Actual/360 1
134 NAP Retail Yes Actual/360 1 360
135 No Office Yes Actual/360 1 360
136 No Retail Yes Actual/360 1
137 No Retail Yes Actual/360 1
138 Yes Retail Yes Actual/360 3
139 No Retail No Actual/360 1
Manufactured
140 No Housing Yes Actual/360 3
141 No Office Yes 30/360 1 360
Manufactured
143 No Housing Yes Actual/360 3 360
144 No Industrial Yes Actual/360 1 360
145 No Multifamily Yes Actual/360 2
146 No Mixed Use Yes Actual/360 1 360
147 Yes Retail Yes Actual/360 1 12/11/36 360
148 No Multifamily Yes Actual/360 2 360
149 No Retail Yes Actual/360 1 360
150 No Retail Yes Actual/360 1
151 NAP Self Storage Yes Actual/360 1 360
152 No Multifamily Yes Actual/360 3 360
153 Yes Retail Yes Actual/360 3
154 No Hotel Yes Actual/360 3 360
155 Yes Retail Yes Actual/360 1 360
155.01 Retail 1 360
155.02 Retail 1 360
156 NAP Retail Yes Actual/360 1 360
157 NAP Retail No Actual/360 1 360
158 No Office Yes Actual/360 1 361
159 Yes Retail Yes Actual/360 1
160 No Office Yes 30/360 1
161 NAP Industrial No Actual/360 1 360
162 No Multifamily Yes Actual/360 2
163 No Multifamily Yes Actual/360 2 360
164 No Office Yes Actual/360 3
165 No Multifamily Yes Actual/360 2 360
166 No Retail Yes Actual/360 1 180
167 Yes Hotel Yes Actual/360 1 300
168 No Self Storage Yes Actual/360 1
169 No Multifamily Yes Actual/360 2
170 No Office Yes Actual/360 3 360
171 NAP Hotel No Actual/360 1 300
172 Yes Retail No Actual/360 1 360
173 NAP Office No Actual/360 1 360
174 Yes Retail Yes Actual/360 1
174.01 Retail 1
174.02 Retail 1
175 No Retail No Actual/360 1 360
176 NAP Office No Actual/360 1 360
177 No Multifamily No Actual/360 2 360
178 NAP Retail Yes Actual/360 1 300
179 No Multifamily Yes Actual/360 2 360
180 No Industrial Yes Actual/360 1 360
181 No Retail Yes Actual/360 1 360
181.01 Retail 1 360
181.02 Retail 1 360
182 Yes Retail Yes Actual/360 1 360
184 NAP Office No Actual/360 1 360
185 NAP Office No Actual/360 1 360
186 No Retail Yes Actual/360 1 360
187 No Parking Garage Yes Actual/360 1 360
188 NAP Multifamily No Actual/360 2 360
189 No Retail No Actual/360 1
190 Yes Retail Yes Actual/360 1
190.01 Retail 1
190.02 Retail 1
191 No Multifamily Yes Actual/360 2 360
192 Yes Office Yes Actual/360 1 240
193 NAP Multifamily No Actual/360 2 360
194 No Retail No Actual/360 1 360
195 No Multifamily Yes Actual/360 2 360
196 Yes Retail Yes Actual/360 1 360
197 No Retail Yes Actual/360 1 360
198 No Industrial Yes 30/360 3
199 No Office No Actual/360 1 360
200 NAP Office Yes Actual/360 1 360
201 Yes Retail Yes Actual/360 1
201.01 Retail 1
201.02 Retail 1
Manufactured
202 No Housing Yes Actual/360 2 360
203 Yes Retail Yes Actual/360 1 360
204 NAP Retail No Actual/360 1 360
205 No Office No Actual/360 1 300
206 NAP Office No Actual/360 1 360
207 NAP Multifamily No Actual/360 2 360
208 No Retail Yes Actual/360 1 360
209 Yes Retail Yes Actual/360 1 03/11/37 360
210 No Retail No Actual/360 1 360
211 NAP Hotel No Actual/360 1 300
212 No Industrial Yes Actual/360 1 360
213 No Multifamily No Actual/360 2 360
214 No Retail Yes Actual/360 1 360
215 No Industrial Yes 30/360 1
216 NAP Office No Actual/360 1 360
217 No Retail Yes Actual/360 1
218 No Industrial No Actual/360 1 360
Manufactured
219 No Housing Yes Actual/360 3
220 NAP Industrial Yes Actual/360 1 120
221 No Retail Yes Actual/360 1 360
222 No Hotel Yes Actual/360 1 300
223 No Multifamily Yes Actual/360 2 360
224 No Industrial Yes Actual/360 3
225 Yes Office Yes Actual/360 1 360
226 No Office No Actual/360 1 360
227 No Multifamily No Actual/360 2 360
228 No Retail Yes Actual/360 1 360
229 No Multifamily No Actual/360 2 360
EXHIBIT C
FORM OF INVESTMENT REPRESENTATION LETTER
Xxxxx Fargo Bank, N.A.
as Certificate Registrar
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services JPMorgan 2007-LDP10
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2007-LDP10, Commercial Mortgage Pass-Through Certificates, Series
2007-LDP10
------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., as Depositor, Midland Loan Services, Inc. and Wachovia Bank, National
Association, as Master Servicers, X.X. Xxxxxx Company, Inc., as Special
Servicer, Xxxxx Fargo Bank, N.A., as Trustee and, LaSalle Bank National
Association as Co-Trustee, on behalf of the holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Trust 2007-LDP10, Commercial Mortgage
Pass-Through Certificates, Series 2007-LDP10 (the "Certificates") in connection
with the transfer by _________________ (the "Seller") to the undersigned (the
"Purchaser") of $_______________ aggregate Certificate Balance of Class ___
Certificates (the "Certificate"). Capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed to such terms in the
Pooling and Servicing Agreement.
In connection with such transfer, the Purchaser hereby represents
and warrants to you and the addressees hereof as follows:
1. Check one of the following:*
/ / The Purchaser is not purchasing a Class R, Class MR or Class LR
Certificate and the Purchaser is an institutional "accredited
investor" (an entity meeting the requirements of Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act of 1933, as
amended (the "Securities Act")) and has such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of its investment in the
Certificates, and the Purchaser and any accounts for which it is
acting are each able to bear the economic risk of the Purchaser's or
such account's investment. The Purchaser is acquiring the
Certificates purchased by it for its own account or for one or more
accounts (each of which is an "institutional accredited investor")
as to each of which the Purchaser exercises sole investment
discretion. The Purchaser hereby undertakes to reimburse the Trust
Fund for any costs incurred by it in connection with this transfer.
/ / The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the Securities
Act of 1933, as amended (the "Securities Act"). The Purchaser is
aware that the transfer is being made in reliance on Rule 144A, and
the Purchaser has had the opportunity to obtain the information
required to be provided pursuant to paragraph (d)(4)(i) of Rule
144A.
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale (i) to "qualified
institutional buyers" in transactions under Rule 144A, and not in any event with
the view to, or for resale in connection with, any distribution thereof, (ii)
(other than with respect to a Residual Certificate) to institutional "accredited
investors" meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of
Regulation D promulgated under the Securities Act or (iii) (other than with
respect to a Residual Certificate) pursuant to any other exemption from the
registration requirements of the Securities Act, subject in the case of clauses
(ii) and (iii) above to (w) the receipt by the Certificate Registrar of a letter
substantially in the form hereof, (x) the receipt by the Certificate Registrar
of an opinion of counsel acceptable to the Certificate Registrar that such
reoffer, resale, pledge or transfer is in compliance with the Securities Act,
(y) the receipt by the Certificate Registrar of such other evidence acceptable
to the Certificate Registrar that such reoffer, resale, pledge or transfer is in
compliance with the Securities Act and other applicable laws and (z) a written
undertaking to reimburse the Trust for any costs incurred by it in connection
with the proposed transfer. The Purchaser understands that the Certificate (and
any subsequent Certificate) has not been registered under the Securities Act, by
reason of a specified exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona fide nature of
the Purchaser's investment intent (or intent to resell to only certain investors
in certain exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the opportunity
to ask questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Private Placement Memorandum.
4. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the Securities Act or the securities laws of any State or any
other jurisdiction, and that the Certificate cannot be resold unless it is
registered or qualified thereunder or unless an exemption from such registration
or qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner of
a Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Registrar and all Certificateholders
present and future.
6. The Purchaser will not sell or otherwise transfer any portion of
the Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. Check one of the following:**
/ / The Purchaser is a U.S. Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or
successor form).
/ / The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be withheld
by the Trustee (or its agent) with respect to distributions to be
made on the Certificate. The Purchaser has attached hereto [(i) a
duly executed IRS Form W-8BEN (or successor form), which identifies
such Purchaser as the beneficial owner of the Certificate and states
that such Purchaser is not a U.S. Person, (ii) IRS Form W-8IMY (with
all appropriate attachments) or (iii)]*** two duly executed copies
of IRS Form W-8ECI (or successor form), which identify such
Purchaser as the beneficial owner of the Certificate and state that
interest and original issue discount on the Certificate and
Permitted Investments is, or is expected to be, effectively
connected with a U.S. trade or business. The Purchaser agrees to
provide to the Certificate Registrar updated [IRS Form W-8BEN, IRS
Form W-8IMY or]*** IRS Form W-8ECI, [as the case may be,]*** any
applicable successor IRS forms, or such other certifications as the
Certificate Registrar may reasonably request, on or before the date
that any such IRS form or certification expires or becomes obsolete,
or promptly after the occurrence of any event requiring a change in
the most recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United
States, a corporation or partnership (except to the extent provided in
applicable Treasury Regulations) or other entity created or organized in, or
under the laws of, the United States, any State thereof or the District of
Columbia, including any entity treated as a corporation or partnership for
federal income tax purposes, an estate whose income is subject to United States
federal income tax regardless of its source or a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more such U.S. Persons have the authority to control all
substantial decisions of such trust (or, to the extent provided in applicable
Treasury Regulations, certain trusts in existence on August 20, 1996 which are
eligible to elect to be treated as U.S. Persons).
8. Please make all payments due on the Certificates:****
/ / (a) by wire transfer to the following account at a bank or entity
in New York, New York, having appropriate facilities therefor:
Bank:_________________________________________________
ABA #:________________________________________________
Account #:____________________________________________
Attention:____________________________________________
/ / (b) by mailing a check or draft to the following address:
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
9. If the Purchaser is purchasing a Class R, Class MR or Class LR
Certificate, the Purchaser is not a partnership (including any entity treated as
a partnership for U.S. federal income tax purposes), any interest in which is
(or is permitted to be under the related partnership agreement) owned, directly
or indirectly, through one or more partnerships, trusts or other pass-through
entities by a non-U.S. Person.
Very truly yours,
_______________________________________
[The Purchaser]
By:____________________________________
Name:
Title:
Dated:
-----------------------
* Purchaser must include one of the following two certifications.
** Each Purchaser must include one of the two alternative certifications.
*** Does not apply to a transfer of Class R, Class MR or Class LR Certificates.
**** Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b). For holders of Definitive Certificates, wire transfers are
only available if such holder's Definitive Certificates have an aggregate
Certificate Balance or Notional Amount, as applicable, of at least U.S.
$5,000,000.
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO SECTION
860E(e)(4) OF THE INTERNAL
REVENUE CODE OF 1986, AS
AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That [he] [she] is [Title of Officer] of [Name of Transferee]
(the "Transferee"), a [description of type of entity] duly organized and
existing under the laws of the [State of __________] [United States], on behalf
of which [he] [she] makes this affidavit.
2. That the Transferee's Taxpayer Identification Number is [ ].
3. That the Transferee of a X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Trust 2007-LDP10, Commercial Mortgage Pass-Through Certificates,
Series 2007-LDP10, Class [R] [MR] [LR] Certificate (the "Class [R] [MR] [LR]
Certificate") is not a Disqualified Organization (as defined below) or an agent
thereof (including nominee, middleman or other similar person) (an "Agent"), or
an ERISA Prohibited Holder or a Non-U.S. Person (as defined below). For these
purposes, a "Disqualified Organization" means any of (i) the United States, any
State or political subdivision thereof, any possession of the United States, or
any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, majority of its board of directors is not selected by such governmental
unit), (ii) a foreign government, any international organization, or any agency
or instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the applicable Master Servicer
based upon an Opinion of Counsel that the holding of an Ownership Interest in a
Residual Certificate by such Person may cause any of the [Upper-Tier REMIC],
[the Middle-Tier REMIC], [the Lower-Tier REMIC] to fail to qualify as a REMIC,
or any Person having an Ownership Interest in any Class of Certificates (other
than such Person) to incur a liability for any federal tax imposed under the
Code that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms "United States,"
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions. For these purposes, "ERISA
Prohibited Holder" means an employee benefit plan subject to Section 406 of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
Section 4975 of the Code or a governmental plan (as defined in Section 3(32) of
ERISA) or a church plan (as defined in Section 3(33) of ERISA) for which no
election has been made under Section 410(d) of the Code subject to any federal,
state or local law which is, to a material extent, similar to the foregoing
provisions of ERISA or the Code (each a "Plan") or a person acting on behalf of
or investing the assets of such a Plan. For these purposes, "Non-U.S. Person"
means any person other than a U.S. Person (within the meaning of Section
7701(a)(30) of the Code), unless, with respect to the Transfer of a Residual
Certificate, (i) such person holds such Residual Certificate in connection with
the conduct of a trade or business within the United States and furnishes the
Transferor and the Certificate Registrar with an effective Internal Revenue
Service Form W-8ECI or (ii) the Transferee delivers to both the Transferor and
the Certificate Registrar an opinion of a nationally recognized tax counsel to
the effect that such Transfer is in accordance with the requirements of the Code
and the regulations promulgated thereunder and that such Transfer of the
Residual Certificate will not be disregarded for federal income tax purposes;
provided, that a partnership shall be considered a Non-U.S. Person (and clause
(i) of this sentence shall not apply) if any of its interests are (or are
permitted to be under the related partnership agreement) owned, directly or
indirectly (other than through a U.S. corporation), through any partnership,
trust or other pass-through entity, by any person that is a Non-U.S. Person. In
addition, the Transferee is a Permitted Transferee.
4. That the Transferee historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future and the
Transferee intends to pay taxes associated with holding the Class [R] [MR] [LR]
Certificate as they become due.
5. That the Transferee understands that it may incur tax liabilities
with respect to the Class [R] [MR] [LR] Certificate in excess of any cash flow
generated by the Class [R] [MR] [LR] Certificate.
6. That the Transferee agrees not to transfer the Class [R] [MR]
[LR] Certificate to any Person or entity unless (a) the Transferee has received
from such Person or entity an affidavit substantially in the form of this
Transfer Affidavit and (b) the Transferee provides to the Certificate Registrar
a letter substantially in the form of Exhibit D-2 to the Pooling and Servicing
Agreement (as defined below) certifying that it has no actual knowledge that
such Person or entity is a Disqualified Organization, or an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person and that it has no reason to know
that such Person or entity does not satisfy the requirements set forth in
paragraph 4 hereof.
7. That the Transferee agrees to such amendments of the Pooling and
Servicing Agreement, dated March 1, 2007, by and among X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., as Depositor, Midland Loan Services, Inc.
and Wachovia Bank, National Association, as Master Servicers, X.X. Xxxxxx
Company, Inc., as Special Servicer, Xxxxx Fargo Bank, N.A., as Trustee and,
LaSalle Bank National Association as Co-Trustee (the "Pooling and Servicing
Agreement"), as may be required to further effectuate the restrictions on
transfer of the Class [R] [MR] [LR] Certificate to such a Disqualified
Organization, or an Agent thereof, an ERISA Prohibited Holder or a Non-U.S.
Person. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
8. That, if a "tax matters person" is required to be designated with
respect to [the Upper-Tier REMIC], [the Middle-Tier REMIC], [the Lower-Tier
REMIC], the Transferee agrees to act as "tax matters person" and to perform the
functions of "tax matters person" of [the Upper-Tier REMIC], [the Middle-Tier
REMIC], [the Lower-Tier REMIC] pursuant to Section 10.01(c) of the Pooling and
Servicing Agreement, and, in such event, agrees to the irrevocable designation
of the Trustee as the Transferee's agent in performing the function of "tax
matters person."
9. That the Transferee has reviewed, and agrees to be bound by and
to abide by, the provisions of Section 5.02(c) of the Pooling and Servicing
Agreement concerning registration of the transfer and exchange of the Class [R]
[MR] [LR] Certificate.
10. That the Transferee will not cause income from the Class [R]
[MR] [LR] Certificate to be attributable to, a foreign permanent establishment
or fixed base, within the meaning of an applicable income tax treaty, of the
Transferee or any other U.S. person.
11. Check one of the following:
/ / That the present value of the anticipated tax liabilities
associated with holding the Class [R] [MR] [LR] Certificate does not exceed the
sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Class [R] [MR] [LR] Certificate;
(ii) the present value of the expected future distributions on such
Class [R] [MR] [LR] Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Class [R] [MR] [LR] Certificate as the related REMIC generates
losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
/ / That the transfer of the Class [R] [MR] [LR] Certificate complies
with U.S. Treasury Regulations Sections 1.860G-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Sections 1.860E-1(c)(6)(i), as to
which income from Class [R] [MR] [LR] Certificate will only be
taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S. Treasury
Regulation Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Class [R] [MR] [LR]
Certificate only to another "eligible corporation," as defined
in U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), in a
transaction that satisfies the requirements of U.S. Treasury
Regulations Sections 1.860G-1(c)(4)(i), (ii) and (iii) and
1.860E-1(c)(5); and
(iv) the Transferee determined the consideration paid to it to
acquire the Class [R] [MR] [LR] Certificate based on
reasonable market assumptions (including, but not limited to,
borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates
and other factors specific to the Transferee) that it has
determined in good faith.
/ / None of the above.
IN WITNESS WHEREOF, the Transferee has caused this instrument to
be executed on its behalf, by its [Title of Officer] this _____ day of
__________, 20__.
[NAME OF TRANSFEREE]
By:____________________________________
[Name of Officer]
[Title of Officer]
By:____________________________________
[Name of Officer]
[Title of Officer]
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Transferee, and acknowledged
to me that [he] [she] executed the same as [his] [her] free act and deed and the
free act and deed of the Transferee.
Subscribed and sworn before me this ___ day of __________, 20__.
_______________________________________
NOTARY PUBLIC
COUNTY OF _____________________________
STATE OF ______________________________
My commission expires the ___ day of __________, 20__.
EXHIBIT D-2
FORM OF TRANSFEROR LETTER
[Date]
Xxxxx Fargo Bank, N.A.
as Certificate Registrar
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services JPMorgan 2007-LDP10
Re: X.X. Xxxxxx Chase Commercial Mortgage Securities Trust 2007-LDP10,
Commercial Mortgage Pass-Through Certificates, Series 2007-LDP10
------------------------------------------------------------------
Ladies and Gentlemen:
[Transferor] has reviewed the affidavit of [Transferee] related to
the transfer of the [Class R, Class MR and Class LR] Certificates, and has no
actual knowledge that such affidavit is not true and has no reason to know that
the requirements set forth in paragraphs 3, 4 and 10 thereof are not satisfied
or, after conducting a reasonable investigation of the financial condition of
the transferee, that the information contained in paragraphs 3, 4 and 10 thereof
is not true.
Very truly yours,
[Transferor]
______________________________________
EXHIBIT E
FORM OF REQUEST FOR RELEASE
[Date]
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services JPMorgan 2007-LDP10
Re: X.X. Xxxxxx Chase Commercial Mortgage Securities Trust 2007-LDP10,
Commercial Mortgage Pass-Through Certificates, Series 2007-LDP10,
REQUEST FOR RELEASE
------------------------------------------------------------------
Dear _______________________,
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under a certain Pooling and Servicing Agreement,
dated March 1, 2007 (the "Pooling and Servicing Agreement"), by and among X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as Depositor, Midland Loan
Services, Inc. and Wachovia Bank, National Association, as master servicers,
X.X. Xxxxxx Company, Inc., as special servicer and LaSalle Bank National
Association, as co-trustee, and you, as Trustee, the undersigned hereby requests
a release of the Mortgage File (or the portion thereof specified below) held by
or on behalf of you as Trustee with respect to the following described Mortgage
Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
______1. Mortgage Loan paid in full. The [applicable Master
Servicer] [Special Servicer] hereby certifies that all
amounts received in connection with the Mortgage Loan
have been or will be credited to the applicable
Certificate Account pursuant to the Pooling and
Servicing Agreement.
______ 2. The Mortgage Loan is being foreclosed.
______ 3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[APPLICABLE MASTER SERVICER] [SPECIAL
SERVICER]
By:____________________________________
Name:
Title:
EXHIBIT F
FORM OF ERISA REPRESENTATION LETTER
Xxxxx Fargo Bank, N.A.
as Certificate Registrar
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services JPMorgan 2007-LDP10
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-LDP10, Commercial Mortgage Pass-Through Certificates, Series
2007-LDP10
------------------------------------------------------------------
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Trust 2007-LDP10, Commercial Mortgage Pass-Through Certificates, Series
2007-LDP10, Class __ (the "Certificate") issued pursuant to that certain Pooling
and Servicing Agreement, dated March 1, 2007 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., as depositor ("Depositor"), Midland Loan Services, Inc. and Wachovia
Bank, National Association, as master servicers ("Master Servicers"), X.X.
Xxxxxx Company, Inc., as special servicer ("Special Servicer"), Xxxxx Fargo
Bank, N.A., as trustee ("Trustee") and, LaSalle Bank National Association, as
co-trustee ("Co-Trustee"). Capitalized terms used and not otherwise defined
herein have the respective meanings ascribed to such terms in the Pooling and
Servicing Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
1. The Purchaser is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a governmental plan (as defined in Section
3(32) of ERISA) or a church plan (as defined in Section 3(33) of ERISA) for
which no election has been made under Section 410(d) of the Code, subject to any
federal, state or local law ("Similar Law") which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code (each a "Plan") or (b)
a person acting on behalf of or using the assets of any such Plan (including an
entity whose underlying assets include Plan assets by reason of investment in
the entity by such a Plan or Plans and the application of Department of Labor
Regulation ss. 2510.3-101), other than an insurance company using the assets of
its "insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption ("PTCE") 95-60) under circumstances
whereby the purchase and holding of Offered Private Certificates by such
insurance company would be exempt from the prohibited transaction provisions of
ERISA and the Code under Sections I and III of PTCE 95-60.
2. The Purchaser understands that if the Purchaser is a Person
referred to in 1(a) or (b) above, such Purchaser is required to provide to the
Certificate Registrar an Opinion of Counsel in form and substance satisfactory
to the Certificate Registrar and the Depositor to the effect that the
acquisition and holding of such Certificate by such purchaser or transferee will
not constitute or result in a non-exempt "prohibited transaction" within the
meaning of ERISA, Section 4975 of the Code or any Similar Law, and will not
subject the Trustee, the Certificate Registrar, the Master Servicers, the
Special Servicer, the Dealers or the Depositor to any obligation or liability
(including obligations or liabilities under ERISA, Section 4975 of the Code or
any such Similar Law) in addition to those set forth in the Pooling and
Servicing Agreement, which Opinion of Counsel shall not be at the expense of the
Depositor, the Master Servicers, the Special Servicer, the Dealers, the
Certificate Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___ day of _____________, 20__.
Very truly yours,
_______________________________________
[The Purchaser]
By:____________________________________
Name:
Title:
EXHIBIT G
FORM OF STATEMENT TO CERTIFICATEHOLDERS
[See Annex C to the Prospectus Supplement dated March 26, 2007]
EXHIBIT H
FORM OF OMNIBUS ASSIGNMENT
[NAME OF CURRENT ASSIGNOR] having an address at [ADDRESS OF CURRENT ASSIGNOR]
(the "Assignor") for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, hereby sells, transfers, assigns,
delivers, sets over and conveys, without recourse, representation or warranty,
express or implied, unto Xxxxx Fargo Bank, N.A., as Trustee for the registered
holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Trust 2007-LDP10,
Commercial Mortgage Pass-Through Certificates, Series 2007-LDP10" (the
"Assignee"), having an office at Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust Services JPMorgan
2007-LDP10, its successors and assigns, all right, title and interest of the
Assignor in and to:
That certain mortgage and security agreement, deed of trust and
security agreement, deed to secure debt and security agreement, or similar
security instrument (the "Security Instrument"), and that certain Promissory
Note (the "Note"), for each of the Mortgage Loans shown on the Mortgage Loan
Schedule attached hereto as Exhibit B, and that certain assignment of leases and
rents given in connection therewith and all of the Assignor's right, title and
interest in any claims, collateral, insurance policies, certificates of deposit,
letters of credit, escrow accounts, performance bonds, demands, causes of action
and any other collateral arising out of and/or executed and/or delivered in or
to or with respect to the Security Instrument and the Note, together with any
other documents or instruments executed and/or delivered in connection with or
otherwise related to the Security Instrument and the Note.
IN WITNESS WHEREOF, the Assignor has executed this instrument under
seal to be effective as of the [__] day of [_____________], 200[__].
[NAME OF CURRENT ASSIGNOR]
By: _____________________________________
Name:
Title:
EXHIBIT I-1
FORM OF REGULATION S TRANSFER CERTIFICATE
DURING RESTRICTED PERIOD
Xxxxx Fargo Bank, N.A.
as Certificate Registrar
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services JPMorgan 2007-LDP10
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-LDP10, Commercial Mortgage Pass-Through Certificates, Series
2007-LDP10 Class [__]
------------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated March 1, 2007 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., as Depositor, Midland Loan Services, Inc. and Wachovia Bank, National
Association, as Master Servicers, X.X. Xxxxxx Company, Inc., as Special
Servicer, Xxxxx Fargo Bank, N.A., as Trustee and LaSalle Bank National
Association, as Co-Trustee, on behalf of the holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Trust 2007-LDP10, Commercial Mortgage
Pass-Through Certificates, Series 2007-LDP10, Class __ (the "Certificates") in
connection with the transfer by the undersigned (the "Transferor") to
_________________ (the "Transferee") of $__________________ [Certificate
Balance] [Notional Amount]of Certificates, in fully registered form (each, a
"Definitive Certificate"), or a beneficial interest of such aggregate
[Certificate Balance] [Notional Amount] in the Regulation S Book-Entry
Certificate (the "Book-Entry Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a person acting for the account or
benefit of a U.S. Person, and upon completion of the transaction,
the Transferred Interest will be held with the Depository through
[Euroclear] [Clearstream];**
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master Servicers
and the Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
-----------------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT I-2
FORM OF REGULATION S TRANSFER CERTIFICATE
AFTER RESTRICTED PERIOD
Xxxxx Fargo Bank, N.A.
as Certificate Registrar
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services JPMorgan 2007-LDP10
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-LDP10, Commercial Mortgage Pass-Through Certificates, Series
2007-LDP10 Class [__]
------------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) the
Pooling and Servicing Agreement, dated March 1, 2007 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., as Depositor, Midland Loan Services, Inc. Xxxxx Fargo Bank, N.A., as
trustee and LaSalle Bank National Association, as co-trustee and Wachovia Bank,
National Association, as Master Servicers, X.X. Xxxxxx Company, Inc., as Special
Servicer, Xxxxx Fargo Bank, N.A., as Trustee and LaSalle Bank National
Association, as Co-Trustee, on behalf of the holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Trust 2007-LDP10, Commercial Mortgage
Pass-Through Certificates, Series 2007-LDP10, Class __ (the "Certificates") in
connection with the transfer by the undersigned (the "Transferor") to
_________________ (the "Transferee") of $__________________ [Certificate
Balance][Notional Amount] of Certificates, in fully registered form (each, a
"Definitive Certificate"), or a beneficial interest of such aggregate
[Certificate Balance][Notional Amount] in the Regulation S Book-Entry
Certificate (the "Book-Entry Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master Servicers
and the Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
-----------------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT J
FORM OF PURCHASE OPTION NOTICE
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services JPMorgan 0000-XXX00
XxXxxxx Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 0000-XXX00
Xxxxxxx Loan Services, Inc.
00000 Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: JPMorgan 0000-XXX00
Xxxxxxxx Bank, National Association
0000 Xxxxxxxx Xxxxx - URP4, NC 1075
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: X.X. Xxxxxx Chase Commercial Mortgage Securities Trust 2007-LDP10,
Commercial Mortgage Pass-Through Certificates, Series 0000-XXX00
X.X. Xxxxxx Company, Inc.
0000 Xxxxxx Xxxxxxxxx, Xxxxx 0000
XxXxxx, Xxxxxxxx 00000
Attention: JPMorgan 2007-LDP10
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-LDP10
Commercial Mortgage Pass-Through Certificates, Series 2007-LDP10
-----------------------------------------------------------------
Ladies and Gentlemen:
The undersigned hereby acknowledges that it is the holder of an
assignable option (the "Purchase Option") to purchase Mortgage Loan number ____
from the Trust Fund, pursuant to Section 3.18 of the pooling and servicing
agreement, dated March 1, 2007 (the "Pooling and Servicing Agreement"), by and
among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as depositor
("Depositor"), Midland Loan Services, Inc. and Wachovia Bank, National
Association, as master servicers ("Master Servicers"), X.X. Xxxxxx Company,
Inc., as special servicer ("Special Servicer"), Xxxxx Fargo Bank, N.A., as
trustee ("Trustee") and LaSalle Bank National Association, as co-trustee
("Co-Trustee"). Capitalized terms used herein and not otherwise defined shall
have the meaning set forth in the Pooling and Servicing Agreement.
The undersigned, holder of the Purchase Option (the "Option
Holder"), [is the Controlling Class Certificateholder] [acquired its Purchase
Option from the Controlling Class Certificateholder on ___________] [is the
Special Servicer] [acquired its Purchase Option from the Special Servicer].
The undersigned Option Holder is exercising its Purchase Option at
the cash price of $______________, which amount equals or exceeds the Option
Price, as defined in Section 3.18(a)(ii) of the Pooling and Servicing Agreement.
Within ten (10) Business Days of its receipt of the applicable Master Servicer's
notice confirming that the exercise of its Purchase Option is effective, [the
undersigned Option Holder] [______________, an Affiliate of the undersigned
Option Holder] will deliver the Option Price to or at the direction of the
applicable Master Servicer in exchange for the release of the Mortgage Loan, the
related Mortgaged Property and delivery of the related Mortgage File.
The undersigned Option Holder agrees that it shall prepare and
provide the applicable Master Servicer with such instruments of transfer or
assignment, in each case without recourse, as shall be reasonably necessary to
vest in it or its designee the ownership of Mortgage Loan [__], together with
such other documents or instruments as the applicable Master Servicer shall
reasonably require to consummate the purchase contemplated hereby.
The undersigned Option Holder acknowledges and agrees that its
exercise of its Purchase Option Notice may not be revoked and, further, that
upon receipt of the applicable Master Servicer's notice confirming that the
exercise of its Purchase Option is effective, the undersigned Option Holder, or
its designee, shall be obligated to close its purchase of Mortgage Loan ___ in
accordance with the terms and conditions of this letter and of the Pooling and
Servicing Agreement.
Very truly yours,
[Option Holder]
By:____________________________________
Name:
Title:
[By signing this letter in the space provided below, the
[Controlling Class Certificateholder] [Special Servicer] hereby acknowledges and
affirms that it transferred its Purchase Option to the Option Holder identified
above on [_________].
[_______________________]
By:_____________________________________
Name:
Title:]
EXHIBIT K
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
Xxxxx Fargo Bank, N.A.
as Certificate Registrar
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services JPMorgan 2007-LDP10
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2007-LDP10, Commercial Mortgage Pass-Through Certificates, Series
2007-LDP10 Class [__]
------------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated March 1, 2007 (the "Pooling and Servicing Agreement"), by and among X.X.
Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor, Midland Loan
Services, Inc. and Wachovia Bank, National Association, as Master Servicers,
X.X. Xxxxxx Company, Inc., as Special Servicer, Xxxxx Fargo Bank, N.A., as
Trustee and LaSalle Bank National Association, as Co-Trustee, on behalf of the
holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-LDP10,
Commercial Mortgage Pass-Through Certificates, Series 2007-LDP10. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Pooling and Servicing Agreement.
This letter relates to US $[_______] aggregate [Certificate
Balance][Notional Amount] of Certificates (the "Certificates") which are held in
the form of the Rule 144A Book-Entry Certificate (CUSIP No. _________) with the
Depository in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest for an interest
in the Regulation S Book-Entry Certificate (CUSIP No. __________) to be held
with [Euroclear] [CEDEL]* (Common Code No.____________) through the Depositary.
In connection with such request and in respect of such Certificates,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States],*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a Person acting for the account or
benefit of a U.S. Person,
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable,
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act, and
(6) upon completion of the transaction, the beneficial interest
being transferred as described above will be held with the
Depository through [Euroclear] [Clearstream].**
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master Servicers
and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
-----------------------
* Select appropriate depository.
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT L
[RESERVED]
EXHIBIT M
FORM OF NOTICE RELATING TO THE [SOLANA] MORTGAGE LOAN, THE [AMERICOLD POOL 2]
MORTGAGE LOAN AND THE [SKYLINE] MORTGAGE LOAN
[Date]
[SOLANA MORTGAGE LOAN]
[SKYLINE MORTGAGE LOAN]
[AMERICOLD POOL 2] MORTGAGE LOAN]
VIA FEDERAL EXPRESS
-------------------
Attention: [__________________]
Re: X.X. Xxxxxx Chase Commercial Mortgage Securities Trust 2007-LDP10,
Commercial Mortgage Pass-Through Certificates, Series 2007-LDP10
------------------------------------------------------------------
Dear [_____________]:
[Midland Loan Services, Inc.] [Bank of America, National
Association] is the [master] [primary] servicer [(the "Solana Master Servicer")]
[(the "Skyline Master Servicer")] [("Americold Pool 2 Primary Servicer")] for
the [Solana Whole Loan] [Skyline Whole Loan] [Americold Pool 2 Whole Loan], as
such term is defined under the Pooling and Servicing Agreement dated March 1,
0000 (xxx "XXX00 Xxxxxxx Agreement") by and among X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., as depositor, Midland Loan Services, Inc. and
Wachovia Bank, National Association, as Master Servicers, X.X. Xxxxxx Company,
Inc., as Special Servicer, Xxxxx Fargo Bank, N.A., as Trustee and LaSalle Bank
National Association, as Co-Trustee, a copy of which is included with this
letter. The Trustee hereby directs the [Solana] [Skyline] [Americold Pool 2]
[Master] [Primary] Servicer, as follows:
The [Solana] [Skyline] [Americold Pool 2] [Master] [Primary]
Servicer shall remit to the applicable LDP10 Master Servicer all amounts payable
to, and forward, deliver or otherwise make available, as the case may be, to the
applicable LDP10 Master Servicer all reports, statements, documents,
communications, and other information that are to be forwarded, delivered or
otherwise made available to, the holder of the [Solana] [Skyline] [Americold
Pool 2] Mortgage Loan (as such term is defined in the XXX00 Xxxxxxx Agreement)
under the Intercreditor Agreement dated as of [February 27, 2007 by and between
Eurohypo AG, New York Branch, as the Note A-1 Holder, the Lead Lender, and
Eurohypo AG, New York Branch, as the Note A-2 Holder] [January 26, 2007, by and
among Bank of America, N.A. and Eurohypo AG, New York Branch, each as holder of
Note A-1, the Lead Lenders, Bank of America, N.A., as holder of Note A-2, and
Eurohypo AG, New York Branch, as holder of Note A-3] [February 28, 2007 by and
between German American Capital Corporation, as the Note A-1A and Note A-1B
Holder, the Initial Agent, and JPMorgan Chase Bank, N.A., as the Note A-2A, Note
A-2B and Note A-2C holder] and the Pooling and Servicing Agreement dated as of
[February 1, 2007 among Banc of America Commercial Mortgage Inc., as depositor,
Bank of America, National Association, as master servicer, LNR Partners, Inc.,
as special servicer and LaSalle Bank National Association, as trustee and REMIC
Administrator, as from time to time amended, supplemented or modified relating
to the issuance of the Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-1] [February 1, 2007 among Banc
of America Commercial Mortgage Inc., as depositor, Bank of America, National
Association, as master servicer, LNR Partners, Inc., as special servicer and
LaSalle Bank National Association, as trustee and REMIC Administrator, as from
time to time amended, supplemented or modified relating to the issuance of the
Banc of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-1] [March 7, 2007 among X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., as depositor, Capmark Finance Inc., as master
servicer, ARCap Servicing Inc. and LNR Partners, Inc., as special servicers,
Midland Loan Services, Inc., as primary servicer and Xxxxx Fargo Bank, N.A., as
trustee and paying agent, as from time to time amended, supplemented or modified
relating to the issuance of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Trust 2007-CIBC18, Commercial Mortgage Pass-Through Certificates Series
2007-CIBC18].
The contact information for the Trustee, applicable Master Servicer
and the Special Servicer is set forth below:
Trustee: Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000-0000.
Master Servicer: Midland Loan Services, Inc., 00000 Xxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000, Attention: President; telecopy number:
(000) 000-0000
Special Servicer: X.X. Xxxxxx Company, Inc., 00000 X. Xxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, Attention: Xxxx Xxxxxxxxxxx, fax
number: (000) 000-0000, with a copy to X.X. Xxxxxx Company, Inc., 0000 Xxxxxx
Xxxxxxxxx, Xxxxx 0000, XxXxxx, Xxxxxxxx 00000, Attention Xxxxx Xxxxxxx, fax
number (000) 000-0000.
Thank you for your attention to this matter.
XXXXX FARGO BANK, N.A., as Trustee for
the Holders of the X.X. Xxxxxx
Chase Commercial Mortgage
Securities Trust 2007-LDP10,
Commercial Mortgage Pass-Through
Certificates, Series 2007-LDP10.
Date: _________________________
XXXXX FARGO BANK, N.A.
By: ___________________________
[Name]
[Title]
EXHIBIT N
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE AFTER RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
Xxxxx Fargo Bank, N.A.
as Certificate Registrar
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services JPMorgan 2007-LDP10
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-LDP10, Commercial Mortgage Pass-Through Certificates, Series
2007-LDP10, Class [__]
------------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated March 1, 2007 (the "Pooling and Servicing Agreement"), by and among X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as Depositor, Midland Loan
Services, Inc. and Wachovia Bank, National Association, as Master Servicers,
X.X. Xxxxxx Company, Inc., as Special Servicer, Xxxxx Fargo Bank, N.A., as
Trustee and, LaSalle Bank National Association as Co-Trustee, on behalf of the
holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-LDP10,
Commercial Mortgage Pass-Through Certificates, Series 2007-LDP10. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are held
in the form of the Rule 144A Book-Entry Certificate (CUSIP No. ________) with
the Depository in the name of [insert name of transferor] (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in the
Certificates for an interest in the Regulation S Book-Entry Certificate (Common
Code No. _____).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and, (i) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States;
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master Servicers
and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
-----------------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT O
FORM OF TRANSFER CERTIFICATE FOR REGULATION S
BOOK-ENTRY CERTIFICATE TO RULE 144A GLOBAL
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
Xxxxx Fargo Bank, N.A.
as Certificate Registrar
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services JPMorgan 2007-LDP10
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-LDP10, Commercial Mortgage Pass-Through Certificates, Series
2007-LDP10, Class[__]
------------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated March 1, 2007 (the "Pooling and Servicing Agreement"), by and among X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as Depositor, Midland Loan
Services, Inc. and Wachovia Bank, National Association, as Master Servicers,
X.X. Xxxxxx Company, Inc., as Special Servicer, Xxxxx Fargo Bank, N.A., as
Trustee and, LaSalle Bank National Association as Co-Trustee, on behalf of the
holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-LDP10,
Commercial Mortgage Pass-Through Certificates, Series 2007-LDP10. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are held
in the form of the Regulation S Book-Entry Certificate (CUSIP No. _______) with
[Euroclear] [Clearstream]* (Common Code No.__________) through the Depository in
the name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Certificates for an
interest in the Regulation 144A Book-Entry Certificate (CUSIP No.____________).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth in
the Pooling and Servicing Agreement and (ii) Rule 144A under the Securities Act
to a transferee that the Transferor reasonably believes is purchasing the
Certificates for its own account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any
jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master
Servicers, the Special Servicer, the Trustee and Initial Purchaser of the
offering of the Certificates.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
-----------------------
* Select appropriate depository.
EXHIBIT P
FORM OF TRANSFER CERTIFICATE FOR REGULATION S
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
Xxxxx Fargo Bank, N.A.
as Certificate Registrar
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services JPMorgan 2007-LDP10
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-LDP10, Commercial Mortgage Pass-Through Certificates, Series
2007-LDP10, Class [__]
------------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated March 1, 2007 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., as Depositor, Midland Loan Services, Inc. and Wachovia Bank, National
Association, as Master Servicers, X.X. Xxxxxx Company, Inc., as Special
Servicer, Xxxxx Fargo Bank, N.A., as Trustee and, LaSalle Bank National
Association as Co-Trustee, on behalf of the holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Trust 2007-LDP10, Commercial Mortgage
Pass-Through Certificates, Series 2007-LDP10 in connection with the transfer by
_______________ of a beneficial interest of $___________ [Certificate Balance]
[Notional Amount] in a Book-Entry Certificate during the Restricted Period to
the undersigned (the "Transferee"). The Transferee desires to beneficially own
such transferred interest in the form of the Regulation S Book-Entry
Certificate. Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
In connection with such transfer, the Transferee does hereby certify
that it is not a "U.S. Person" (within the meaning of Rule 902 Regulation S
under the Securities Act of 1933, as amended). This certificate and the
statements contained herein are made for your benefit and the benefit of the
Depositor, the Trustee, the applicable Master Servicer and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
EXHIBIT Q
FORM OF CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
CERTIFICATION
X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-LDP10 Commercial Mortgage Pass-Through Certificates
Series 2007-LDP10 (the "Trust")
I, [_____________], the President and Chief Executive Officer of
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., the depositor into the
above-referenced Trust, certify that:
1. I have reviewed this annual report on Form 10-K, and all reports on Form
10-D required to be filed in respect of the period covered by this
annual report on Form 10-K, of the Trust (the "Exchange Act Periodic
Reports");
2. Based on my knowledge, the Exchange Act Periodic Reports, taken as a
whole, do not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading
with respect to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D for the period
covered by this report is included in the Exchange Act Periodic Reports;
4. Based on my knowledge and the servicer compliance statement(s) required
in this report under Item 1123 of Regulation AB, and except as disclosed
in the Exchange Act Periodic Reports, the master servicers and the
special servicer have fulfilled their obligations under the pooling and
servicing agreement in all material respects; and
5. All of the reports on assessment of compliance with servicing criteria
and their related attestation reports on assessment of compliance with
servicing criteria required to be included in this report in accordance
with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18
have been included as an exhibit to this report, except as otherwise
disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this report on Form
10-K.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: Midland Loan Services,
Inc., Wachovia Bank, National Association, X.X. Xxxxxx Company, Inc., Xxxxx
Fargo Bank, N.A. and LaSalle Bank National Association.
Date:_______________________________
By: ___________________________________________
President and Chief Executive Officer
X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp.
EXHIBIT R-1-1
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY TRUSTEE
CERTIFICATION
X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-LDP10 Commercial Mortgage Pass-Through Certificates
Series 2007-LDP10 (the "Trust")
I, [identify the certifying individual], a [title] of Xxxxx Fargo
Bank, N.A., certify to X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
and its officers, directors and affiliates, and with the knowledge and intent
that they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal year 20__
(the "Annual Report"), and all reports on Form 10-D required to be filed
in respect of periods covered by that annual report on Form 10-K, of the
Trust (collectively with the Annual Report, the "Exchange Act Periodic
Reports");
2. Based on my knowledge, the Exchange Act Periodic Reports, taken as a
whole, do not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading
with respect to the period covered by the Annual Report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided to the trustee by the master
servicers and the special servicer under the pooling and servicing
agreement for inclusion in the Exchange Act Periodic Reports is included
in such reports;
4. I am responsible for reviewing the activities performed by the Trustee
and based on my knowledge and the compliance reviews conducted in
preparing the Trustee compliance statements required for inclusion on
Form 10-K pursuant to Item 1123 of Regulation AB, and except as
disclosed on any Form 10-D or 10-K, the Trustee has fulfilled its
obligations in all material respects under the pooling and servicing
agreement; and
5. The report on assessment of compliance with servicing criteria and the
related attestation report on assessment of compliance with servicing
criteria required to be delivered in accordance with Section 11.10 and
Section 11.11 of the pooling and servicing agreement discloses all
material instances of noncompliance with the Relevant Servicing Criteria
and such assessment of compliance with servicing criteria is fairly
stated in all material respects.
Date:_______________________________
XXXXX FARGO BANK, N.A.
By: ___________________________________________
[Name]
[Title]
EXHIBIT R-1-2
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY CO-TRUSTEE
CERTIFICATION
Re: X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-LDP10, Commercial Mortgage Pass-Through Certificates,
Series 2007-LDP10 (the "Trust"), issued pursuant to that certain
Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), by and among X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp, as depositor (the
"Depositor"), Midland Loan Services, Inc. and Wachovia Bank,
National Association, as master servicers ("Master Servicers"),
X.X. Xxxxxx Company, Inc., as special servicer ("Special
Servicer"), Wells Fargo Bank, N.A., as trustee ("Trustee") and,
LaSalle Bank National Association as co-trustee ("Co-Trustee")
I, [identify the certifying individual], a [title] of LaSalle
Bank National Association, on behalf of LaSalle Bank National Association,
certify to J.P. Morgan Chase Commercial Mortgage Securities Corp. and its
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification in delivering the Certification required by
the Pooling and Servicing Agreement relating to the Certificates (capitalized
terms used herein without definition shall have the meanings assigned to such
terms in the Pooling and Servicing Agreement), that:
1. Based on my knowledge, the information provided by LaSalle Bank National
Association to the Trustee for filing on reports on Form 10-D (if any)
and the annual report on Form 10-K (the "Co-Trustee Disclosure
Information") in respect of periods covered by the annual report on Form
10-K, of the Trust, 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;
2. Based on my knowledge, any Co-Trustee Disclosure Information required to
be provided to the Trustee by LaSalle Bank National Association under
the Pooling and Servicing Agreement for inclusion in the reports to be
filed by the Trustee is included in the information delivered by LaSalle
Bank National Association to the Trustee;
3. I am responsible for reviewing the activities performed by LaSalle Bank
National Association under the Pooling and Servicing Agreement and based
upon my knowledge and the compliance review conducted in preparing the
servicer compliance statement required under Section 11.09 of the
Pooling and Servicing Agreement and except as disclosed in such
compliance statement delivered by LaSalle Bank National Association
under Section 11.09 of the Pooling and Servicing Agreement, the
Co-Trustee has fulfilled its obligations under the Pooling and Servicing
Agreement in all material respects in the year to which such review
applies; and
4. The report on assessment of compliance with servicing criteria and the
related attestation report on assessment of compliance with servicing
criteria required to be delivered by LaSalle Bank National Association
as Co-Trustee in accordance with Section 11.10 and Section 11.11 of the
Pooling and Servicing Agreement discloses with respect to LaSalle Bank
National Association all material instances of noncompliance with the
Relevant Servicing Criteria and such assessment of compliance with
servicing criteria is fairly stated in all material respects.
Date:_______________________________
LASALLE BANK NATIONAL ASSOCIATION, as Co-Trustee
By: ___________________________________________
[Name]
[Title]
EXHIBIT R-2
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY MASTER SERVICER NO. 1
CERTIFICATION
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust
2007-LDP10, Commercial Mortgage Pass-Through Certificates,
Series 2007-LDP10 (the "Trust"), issued pursuant to that certain
Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), by and among J.P. Morgan
Chase Commercial Mortgage Securities Corp, as depositor (the
"Depositor"), Midland Loan Services, Inc. and Wachovia Bank,
National Association, as master servicers ("Master Servicers"),
J.E. Robert Company, Inc., as special servicer ("Special
Servicer"), Wells Fargo Bank, N.A., as trustee ("Trustee") and,
LaSalle Bank National Association as co-trustee ("Co-Trustee")
I, [identify the certifying individual], a [title] of Midland
Loan Services, Inc., on behalf of Midland Loan Services, Inc., certify to J.P.
Morgan Chase Commercial Mortgage Securities Corp. and its officers, directors
and affiliates, and with the knowledge and intent that they will rely upon this
certification in delivering the Certification required by the Pooling and
Servicing Agreement relating to the Certificates (capitalized terms used herein
without definition shall have the meanings assigned to such terms in the Pooling
and Servicing Agreement), that:
1. Based on my knowledge, the servicing information in the servicing
reports relating to the trust fund delivered by Midland Loan Services,
Inc. to the Trustee covering the fiscal year 20__, taken as a whole,
does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading
with respect to the period covered by these servicing reports;
2. Based on my knowledge, the servicing information required to be provided
to the Trustee by Midland Loan Services, Inc. under the Pooling and
Servicing Agreement for inclusion in the reports to be filed by the
Trustee is included in the servicing reports delivered by Midland Loan
Services, Inc. to the Trustee;
3. I am responsible for reviewing the activities performed by Midland Loan
Services, Inc. under the Pooling and Servicing Agreement and based upon
my knowledge and the compliance review conducted in preparing the
servicer compliance statement required under Section 11.09 of the
Pooling and Servicing Agreement and except as disclosed in such
compliance statement delivered by Midland Loan Services, Inc. under
Section 11.09 of the Pooling and Servicing Agreement, the Master
Servicer has fulfilled its obligations under the Pooling and Servicing
Agreement in all material respects in the year to which such review
applies; and
4. The report on assessment of compliance with servicing criteria and the
related attestation report on assessment of compliance with servicing
criteria required to be delivered by Midland Loan Services, Inc. in
accordance with Section 11.10 and Section 11.11 of the Pooling and
Servicing Agreement discloses with respect to Midland Loan Services,
Inc. all material instances of noncompliance with the Relevant Servicing
Criteria and such assessment of compliance with servicing criteria is
fairly stated in all material respects.
Date:_______________________________
MIDLAND LOAN SERVICES, INC.
By: ___________________________________________
[Name]
[Title]
EXHIBIT R-3
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY MASTER SERVICER NO. 2
CERTIFICATION
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust
2007-LDP10, Commercial Mortgage Pass-Through Certificates,
Series 2007-LDP10 (the "Trust"), issued pursuant to that certain
Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), by and among J.P. Morgan
Chase Commercial Mortgage Securities Corp, as depositor (the
"Depositor"), Midland Loan Services, Inc. and Wachovia Bank,
National Association, as master servicers ("Master Servicers"),
J.E. Robert Company, Inc., as special servicer ("Special
Servicer"), Wells Fargo Bank, N.A., as trustee ("Trustee") and,
LaSalle Bank National Association as co-trustee ("Co-Trustee")
I, [identify the certifying individual], a [title] of Wachovia
Bank, National Association, on behalf of Wachovia Bank, National Association,
certify to J.P. Morgan Chase Commercial Mortgage Securities Corp. and its
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification in delivering the Certification required by
the Pooling and Servicing Agreement relating to the Certificates (capitalized
terms used herein without definition shall have the meanings assigned to such
terms in the Pooling and Servicing Agreement), that:
1. Based on my knowledge and the statements required to be made in the
corresponding certificate of the Special Servicer pursuant to Section
11.06 of the Pooling and Servicing Agreement, the servicing information
in the servicing reports relating to the trust fund delivered by
Wachovia Bank, National Association to the Trustee covering the fiscal
year 20__, taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered
by these servicing reports;
2. Based on my knowledge and the statements required to be made in the
corresponding certificate of the Special Servicer pursuant to Section
11.06 of the Pooling and Servicing Agreement, the servicing information
required to be provided to the Trustee by Wachovia Bank, National
Association under the Pooling and Servicing Agreement for inclusion in
the reports to be filed by the Trustee is included in the servicing
reports delivered by Wachovia Bank, National Association to the Trustee;
3. I am responsible for reviewing the activities performed by Wachovia
Bank, National Association under the Pooling and Servicing Agreement and
based upon my knowledge and the compliance review conducted in preparing
the servicer compliance statement required under Section 11.09 of the
Pooling and Servicing Agreement and except as disclosed in such
compliance statement delivered by Wachovia Bank, National Association
under Section 11.09 of the Pooling and Servicing Agreement, the Master
Servicer has fulfilled its obligations under the Pooling and Servicing
Agreement in all material respects in the year to which such review
applies; and
4. The report on assessment of compliance with servicing criteria and the
related attestation report on assessment of compliance with servicing
criteria required to be delivered by Wachovia Bank, National Association
in accordance with Section 11.10 and Section 11.11 of the Pooling and
Servicing Agreement discloses with respect to Wachovia Bank, National
Association all material instances of noncompliance with the Relevant
Servicing Criteria and such assessment of compliance with servicing
criteria is fairly stated in all material respects.
Date:_______________________________
WACHOVIA BANK, NATIONAL ASSOCIATION
By: ___________________________________________
[Name]
[Title]
EXHIBIT R-4
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY SPECIAL SERVICER
CERTIFICATION
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust
2007-LDP10, Commercial Mortgage Pass-Through Certificates,
Series 2007-LDP10 (the "Trust"), issued pursuant to that certain
Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), by and among J.P. Morgan
Chase Commercial Mortgage Securities Corp, as depositor (the
"Depositor"), Midland Loan Services, Inc. and Wachovia Bank,
National Association, as master servicers ("Master Servicers"),
J.E. Robert Company, Inc., as special servicer ("Special
Servicer"), Wells Fargo Bank, N.A., as trustee ("Trustee") and,
LaSalle Bank National Association as co-trustee ("Co-Trustee")
I, [identify the certifying individual], a [title] of J.E. Robert
Company, Inc., on behalf of J.E. Robert Company, Inc., certify to J.P. Morgan
Chase Commercial Mortgage Securities Corp., Midland Loan Services, Inc. and
Wachovia Bank, National Association and their officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification in delivering the Certification required by the Pooling and
Servicing Agreement relating to the Certificates (capitalized terms used herein
without definition shall have the meanings assigned to such terms in the Pooling
and Servicing Agreement), that:
1. Based on my knowledge, the servicing information in the servicing
reports or information relating to the trust fund delivered by the
Special Servicer to the Trustee and/or the Master Servicers covering the
fiscal year 20__, taken as a whole, does not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period
covered by these servicing reports;
2. Based on my knowledge, the servicing information required to be provided
to the Trustee and/or Master Servicers by the Special Servicer under the
Pooling and Servicing Agreement for inclusion in the reports to be filed
by the Trustee is included in the servicing reports delivered by the
Special Servicer to the Trustee and/or Master Servicers;
3. I am responsible for reviewing the activities performed by the Special
Servicer under the Pooling and Servicing Agreement and based upon my
knowledge and the compliance review conducted in preparing the servicer
compliance statement required under Section 11.09 of the Pooling and
Servicing Agreement with respect to the Special Servicer, and except as
disclosed in such compliance statement delivered by the Special Servicer
under Section 11.09 of the Pooling and Servicing Agreement, the Special
Servicer has fulfilled its obligations under the Pooling and Servicing
Agreement in all material respects in the year to which such review
applies; and
4. The report on assessment of the Special Servicer's compliance with
servicing criteria and the related attestation report on assessment of
the Special Servicer's compliance with servicing criteria required to be
delivered in accordance with Section 11.10 and Section 11.11 of the
Pooling and Servicing Agreement disclose all material instances of
noncompliance with the Relevant Servicing Criteria and such assessment
of the Special Servicer's compliance with servicing criteria is fairly
stated in all material respects.
Date:_______________________________
J.E. ROBERT COMPANY, INC.
By: ___________________________________________
[Name]
[Title]
EXHIBIT S
INITIAL COMPANION HOLDERS
Mezz Cap Finance, LLC (formerly CBA Mezzanine Capital Finance, LLC) shall be the
initial Companion Holder with respect to the Anchor Government Assets Mortgage
Loan.
Mezz Cap Finance, LLC (formerly CBA Mezzanine Capital Finance, LLC) shall be the
initial Companion Holder with respect to the Timberline Apartments Mortgage
Loan.
Mezz Cap Finance, LLC (formerly CBA Mezzanine Capital Finance, LLC) shall be the
initial Companion Holder with respect to the Turtle Creek Park Mortgage Loan.
Nomura Credit & Capital, Inc. shall be the initial Companion Holder with respect
to the Overland Park Trade Center Mortgage Loan [if the B Note is funded].
JPMorgan Chase Bank, N.A. shall be the initial holder with respect to the 599
Lexington Ave A2 Pari Passu Companion Loan.
Column Financial, Inc. shall be the initial holder with respect to the 599
Lexington Ave A3 Pari Passu Companion Loan.
KeyBank National Association shall be the initial holder with respect to the 599
Lexington Ave A4 Pari Passu Companion Loan.
Banc of America Commercial Mortgage Trust 2007-1 shall be the initial holder
with respect to the Skyline Portfolio A1 Pari Passu Companion Loan.
GE Commercial Mortgage Corporation, Series 2007-C1 Trust shall be the initial
holder with respect to the Skyline Portfolio A2 Pari Passu Companion Loan.
Banc of America Commercial Mortgage Trust 2007-1 shall be the initial holder
with respect to the Solana Pari Passu Companion Loan.
German American Capital Corporation shall be the initial holder with respect to
the AmeriCold Pool 2 A-1A Pari Passu Companion Loan.
German American Capital Corporation shall be the initial holder with respect to
the AmeriCold Pool 2 A-1B Pari Passu Companion Loan.
J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-CIBC18, shall be the
initial holder with respect to the AmeriCold Pool 2 A-2A Pari Passu Companion
Loan.
JPMorgan Chase Bank, N.A., shall be the initial holder with respect to the
AmeriCold Pool 2 A-2C Pari Passu Companion Loan.
EXHIBIT T
[RESERVED]
EXHIBIT U
INFORMATION REQUEST FROM CERTIFICATEHOLDER, BENEFICIAL OWNER
OR PROSPECTIVE PURCHASER
[Date]
Wells Fargo Bank, N.A.
as Certificate Registrar
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services JPMorgan 2007-LDP10
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-LDP10,
Commercial Mortgage Pass-Through Certificates, Series 2007-LDP10
------------------------------------------------------------------
Pursuant to the Pooling and Servicing Agreement, dated as of March
1, 2007 (the "Agreement"), by and among J.P. Morgan Chase Commercial Mortgage
Securities Corp., as Depositor, Midland Loan Services, Inc. and Wachovia Bank,
National Association, as Master Servicers, J.E. Robert Company, Inc., as Special
Servicer, Wells Fargo Bank, N.A., as Trustee and, LaSalle Bank National
Association as Co-Trustee, with respect to the J.P. Morgan Chase Commercial
Mortgage Securities Trust 2007-LDP10, Commercial Mortgage Pass-Through
Certificates, Series 2007-LDP10 (the "Certificates"), the undersigned hereby
certifies and agrees as follows:
1. The undersigned is a [Holder] [Certificate Owner] [prospective
purchaser] of $___________ aggregate [Certificate Balance/Notional Amount] of
the Class ____ Certificates.
2. The undersigned is requesting access to the information (the
"Information") on the Trustee's Internet Website pursuant to Section 4.02 of the
Agreement.
3. In consideration of the Trustee's disclosure to the undersigned
of the Information, the undersigned will keep the Information confidential
(except from such outside persons as are assisting it in evaluating the
Information), and such Information will not, without the prior written consent
of the Trustee, be disclosed by the undersigned or by its officers, directors,
partners employees, agents or representatives in any manner whatsoever, in whole
or in part; provided that the undersigned may provide all or any part of the
Information to any other person or entity that is contemplating the purchase of
any Certificate, but only if such person or entity confirms in writing such
prospective ownership interest and agrees to keep it confidential; and provided
that the undersigned may provide all or any part of the Information to its
auditors, legal counsel and regulators.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require registration of any Certificate pursuant to
Section 5 of the Securities Act or under any other applicable law.
Capitalized terms not defined herein shall have the same meaning
ascribed to them in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[HOLDER] [CERTIFICATE OWNER]
[PROSPECTIVE PURCHASER]
By:____________________________________
Name:
Title:
Telephone No.:
EXHIBIT V
TRUSTEE CERTIFICATION/EXCEPTION REPORT
[DATE]
To the Persons Listed on the attached Schedule A
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-LDP10,
Commercial Mortgage Pass-Through Certificates, Series 2007-LDP10
------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the Pooling Servicing Agreement,
dated as of March 1, 2007 (the "Agreement"), by and among J.P. Morgan Chase
Commercial Mortgage Securities Corp., as Depositor, Midland Loan Services, Inc.
and Wachovia Bank, National Association, as Master Servicers, J.E. Robert
Company, Inc., as Special Servicer, Wells Fargo Bank, N.A., as Trustee and,
LaSalle Bank National Association as Co-Trustee, the undersigned, as Trustee,
hereby certifies that, except as noted on the attached Trustee Exception Report,
as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or for which a Liquidation Event has occurred) the
Trustee has, subject to Section 2.02(e) of the Agreement, reviewed the documents
delivered to it pursuant to Section 2.01 of the Agreement and has determined
that (i) all documents specified in clauses (i) through (v), (ix) through (xii)
and (xvi) (or, with respect to clause (xvi), a copy of such letter of credit and
the required officer's certificate), if any, of the definition of "Mortgage
File," as applicable, are in its possession, (ii) the foregoing documents
delivered or caused to be delivered by the Mortgage Loan Sellers have been
reviewed by it or by a Custodian on its behalf and appear regular on their face
and appear to be executed and to relate to such Mortgage Loan, and (iii) based
on such examination and only as to the foregoing documents, the information set
forth in the Mortgage Loan Schedule with respect to the items specified in
clauses (iv), (vi) and (viii)(c) in the definition of "Mortgage Loan Schedule"
is correct.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Agreement.
WELLS FARGO BANK, N.A.,
as Trustee
By:____________________________________
Name:
Title:
EXHIBIT W
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the referenced party shall
address, at a minimum, the criteria identified below as "Applicable Servicing
Criteria" applicable to such party, as such criteria may be updated or limited
by the Commission or its staff (including, without limitation, not requiring the
delivery of certain of the items set forth on this Exhibit based on interpretive
guidance provided by the Commission or its staff relating to Item 1122 of
Regulation AB). For the avoidance of doubt, for purposes of this Exhibit W,
other than with respect to Item 1122(d)(2)(iii), references to Master Servicer
below shall include any Sub-Servicer engaged by a Master Servicer.
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
Reference Criteria
----------------------------------------------------------------------------------------------
General Servicing Considerations
----------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any Trustee
performance or other triggers and events of default in Co-Trustee
accordance with the transaction agreements. Master Servicer
Special Servicer
----------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to Trustee
third parties, policies and procedures are instituted Co-Trustee
to monitor the third party's performance and Master Servicer
compliance with such servicing activities. Special Servicer
----------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to N/A
maintain a back-up servicer for the mortgage loans are
maintained.
----------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in Custodian
effect on the party participating in the servicing Master Servicer
function throughout the reporting period in the amount Special Servicer
of coverage required by and otherwise in accordance
with the terms of the transaction agreements.
----------------------------------------------------------------------------------------------
Cash Collection and Administration
----------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the Trustee
appropriate custodial bank accounts and related bank Master Servicer
clearing accounts no more than two business days Special Servicer
following receipt, or such other number of days
specified in the transaction agreements.
----------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an Trustee
obligor or to an investor are made only by authorized
personnel.
----------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, Master Servicer
cash flows or distributions, and any interest or other Special Servicer
fees charged for such advances, are made, reviewed and Trustee
approved as specified in the transaction agreements. Co-Trustee
----------------------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash Trustee
reserve accounts or accounts established as a form of Master Servicer
overcollateralization, are separately maintained Special Servicer
(e.g., with respect to commingling of cash) as set
forth in the transaction agreements.
----------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally Trustee
insured depository institution as set forth in the Master Servicer
transaction agreements. For purposes of this Special Servicer
criterion, "federally insured depository institution"
with respect to a foreign financial institution means
a foreign financial institution that meets the
requirements of Rule 13k-1(b)(1) of the Securities
Exchange Act.
----------------------------------------------------------------------------------------------
Trustee
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent Master Servicer
unauthorized access. Special Servicer
----------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for Trustee
all asset-backed securities related bank accounts, Master Servicer
including custodial accounts and related bank clearing Special Servicer
accounts. These reconciliations are (A) mathematically
accurate; (B) prepared within 30 calendar days after
the bank statement cutoff date, or such other number
of days specified in the transaction agreements;
(C) reviewed and approved by someone other than the
person who prepared the reconciliation; and
(D) contain explanations for reconciling items. These
reconciling items are resolved within 90 calendar days
of their original identification, or such other number
of days specified in the transaction agreements.
----------------------------------------------------------------------------------------------
Investor Remittances and Reporting
----------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with Trustee
the Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are
prepared in accordance with timeframes and other terms
set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed
with the Commission as required by its rules and
regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Reporting Servicer.
----------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in Trustee
accordance with timeframes, distribution priority and
other terms set forth in the transaction agreements.
----------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within Trustee
two business days to the Servicer's investor records,
or such other number of days specified in the
transaction agreements.
----------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports Trustee
agree with cancelled checks, or other form of payment,
or custodial bank statements.
----------------------------------------------------------------------------------------------
Pool Asset Administration
----------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained Trustee
as required by the transaction agreements or related Master Servicer
mortgage loan documents. Special Servicer
----------------------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as Trustee
required by the transaction agreements
----------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset Trustee
pool are made, reviewed and approved in accordance Master Servicer
with any conditions or requirements in the transaction Special Servicer
agreements.
----------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, Master Servicer
made in accordance with the related mortgage loan
documents are posted to the Servicer's obligor records
maintained no more than two business days after
receipt, or such other number of days specified in the
transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in accordance
with the related mortgage loan documents.
----------------------------------------------------------------------------------------------
1122(d)(4)(v) The Reporting Servicer's records regarding the Master Servicer
mortgage loans agree with the Reporting Servicer's
records with respect to an obligor's unpaid principal
balance.
----------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an Master Servicer
obligor's mortgage loans (e.g., loan modifications or Special Servicer
re-agings) are made, reviewed and approved by
authorized personnel in accordance with the
transaction agreements and related pool asset
documents.
----------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance Special Servicer
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with
the timeframes or other requirements established by
the transaction agreements.
----------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained Master Servicer
during the period a mortgage loan is delinquent in Special Servicer
accordance with the transaction agreements. Such
records are maintained on at least a monthly basis, or
such other period specified in the transaction
agreements, and describe the entity's activities in
monitoring delinquent mortgage loans including, for
example, phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed temporary
(e.g., illness or unemployment).
----------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for Master Servicer
mortgage loans with variable rates are computed based
on the related mortgage loan documents.
----------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such Master Servicer
as escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's mortgage loan documents,
on at least an annual basis, or such other period
specified in the transaction agreements; (B) interest
on such funds is paid, or credited, to obligors in
accordance with applicable mortgage loan documents and
state laws; and (C) such funds are returned to the
obligor within 30 calendar days of full repayment of
the related mortgage loans, or such other number of
days specified in the transaction agreements.
----------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or Master Servicer
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments,
provided that such support has been received by the
servicer at least 30 calendar days prior to these
dates, or such other number of days specified in the
transaction agreements.
----------------------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any Master Servicer
payment to be made on behalf of an obligor are paid
from the servicer's funds and not charged to the
obligor, unless the late payment was due to the
obligor's error or omission.
----------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted Master Servicer
within two business days to the obligor's records
maintained by the servicer, or such other number of
days specified in the transaction agreements.
----------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts Master Servicer
are recognized and recorded in accordance with the
transaction agreements.
----------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support, identified N/A
in Item 1114(a)(1) through (3) or Item 1115 of
Regulation AB, is maintained as set forth in the
transaction agreements.
----------------------------------------------------------------------------------------------
EXHIBIT X
ADDITIONAL FORM 10-D DISCLOSURE
----------------------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
----------------------------------------------------------------------------------------------
Item 1: Distribution and Pool Performance Trustee
Information Depositor
Any information required by Item 1121 of
Regulation AB which is NOT included on the
Monthly Statement
----------------------------------------------------------------------------------------------
Item 2: Legal Proceedings (i) All parties to the Pooling and
Servicing Agreement (as to themselves),
per Item 1117 of Regulation AB (ii) as to litigation to which they
respectively have knowledge, the Trustee,
the Co-Trustee, the Master Servicers and
the Special Servicer as to the issuing
entity, (iii) the Depositor as to the
sponsor, any 1110(b) originator and any
1100(d)(1) party
----------------------------------------------------------------------------------------------
Item 3: Sale of Securities and Use of Proceeds Depositor
----------------------------------------------------------------------------------------------
Item 4: Defaults Upon Senior Securities Trustee
----------------------------------------------------------------------------------------------
Item 5: Submission of Matters to a Vote of Trustee
Security Holders
----------------------------------------------------------------------------------------------
Item 6: Significant Obligors of Pool Assets Depositor
----------------------------------------------------------------------------------------------
Item 7: Significant Enhancement Provider Depositor (The Depositor will request from
Information the Swap Counterparty such financial
information as described in Part 5
paragraph (m)(ii) of the Schedule to the
Swap Contract)
----------------------------------------------------------------------------------------------
Item 8: Other Information (information Any party responsible for disclosure items
required to be disclosed on Form 8-K that was on Form 8-K to the extent of such items
not properly disclosed)
----------------------------------------------------------------------------------------------
Item 9: Exhibits Trustee
Depositor
----------------------------------------------------------------------------------------------
EXHIBIT Y
ADDITIONAL FORM 10-K DISCLOSURE
----------------------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
----------------------------------------------------------------------------------------------
Item 1B: Unresolved Staff Comments Depositor
----------------------------------------------------------------------------------------------
Item 9B: Other Information (Information Any party responsible for disclosure items
required to be reported on Form 8-K during the on Form 8-K to the extent of such items
4th quarter of the year covered by the Form
10-K that was not properly reported)
----------------------------------------------------------------------------------------------
Item 15: Exhibits, Financial Statement Trustee
Schedules Depositor
----------------------------------------------------------------------------------------------
Additional Item: (i) All parties to the Pooling and
Disclosure per Item 1117 of Regulation AB Servicing Agreement (as to themselves),
(ii) as to litigation to which they
respectively have knowledge, the Trustee,
the Co-Trustee, the Master Servicers and
the Special Servicer as to the issuing
entity, (iii) the Depositor as to the
sponsor, any 1110(b) originator and any
1100(d)(1) party
----------------------------------------------------------------------------------------------
Additional Item: (i) All parties to the Pooling and
Disclosure per Item 1119 of Regulation AB Servicing Agreement as to themselves (to
the extent material to Certificateholders
and only as to affiliations under Item
1119(a) with the Trustee, Co-Trustee,
Special Servicer or a sub-servicer meeting
any of the descriptions in Item
1108(a)(3)), (ii) the Depositor as to the
sponsor, originator, significant obligor,
enhancement or support provider
----------------------------------------------------------------------------------------------
Additional Item: Depositor
Disclosure per Item 1112(b) of Regulation AB
----------------------------------------------------------------------------------------------
Additional Item: Depositor (The Depositor will request from
Disclosure per Items 1114(b)(2) and 1115(b) of the Swap Counterparty such financial
Regulation AB information as described in Part 5
paragraph (m)(ii) of the Schedule to the
Swap Contract)
----------------------------------------------------------------------------------------------
EXHIBIT Z
FORM 8-K DISCLOSURE INFORMATION
----------------------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
----------------------------------------------------------------------------------------------
Item 1.01: Entry into a Material Definitive All parties (only as to agreements such
Agreement entity is a party to or entered into on
behalf of the Trust Fund)
----------------------------------------------------------------------------------------------
Item 1.02: Termination of a Material All parties (only as to agreements such
Definitive Agreement entity is a party to or entered into on
behalf of the Trust Fund)
----------------------------------------------------------------------------------------------
Item 1.03: Bankruptcy or Receivership Depositor
----------------------------------------------------------------------------------------------
Item 2.04: Triggering Events that Accelerate Depositor
or Increase a Direct Financial Obligation or
an Obligation under an Off-Balance Sheet
Arrangement
----------------------------------------------------------------------------------------------
Item 3.03: Material Modification to Rights of Trustee
Security Holders
----------------------------------------------------------------------------------------------
Item 5.03: Amendments of Articles of Depositor
Incorporation or Bylaws; Change of Fiscal Year
----------------------------------------------------------------------------------------------
Item 6.01: ABS Informational and Computational Depositor
Material
----------------------------------------------------------------------------------------------
Item 6.02: Change of Master Servicer, Special Master Servicers
Servicer or Trustee Special Servicer
Trustee
Co-Trustee
Depositor
----------------------------------------------------------------------------------------------
Item 6.03: Change in Credit Enhancement or Depositor
External Support Trustee
----------------------------------------------------------------------------------------------
Item 6.04: Failure to Make a Required Trustee
Distribution
----------------------------------------------------------------------------------------------
Item 6.05: Securities Act Updating Disclosure Depositor
----------------------------------------------------------------------------------------------
Item 7.01: Regulation FD Disclosure Depositor
----------------------------------------------------------------------------------------------
Item 8.01 Depositor
----------------------------------------------------------------------------------------------
Item 9.01 Depositor
----------------------------------------------------------------------------------------------
EXHIBIT AA
ADDITIONAL DISCLOSURE NOTIFICATION
**SEND VIA FAX TO (410) 715-2380 AND VIA E-MAIL TO Wells Fargo Bank at
cts.sec.notifications@wellsfargo.com AND VIA OVERNIGHT MAIL TO THE ADDRESS
IMMEDIATELY BELOW**
Wells Fargo Bank, N.A.
as Certificate Registrar
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services JPMorgan 2006-LDP10-SEC REPORT PROCESSING
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, New York, New York 10017
Attention: Dennis Schuh and Bianca Russo
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [__] of the Pooling and Servicing
Agreement, dated as of March 1, 2007, by and among J.P. Morgan Chase Commercial
Mortgage Securities Corp., as depositor, Midland Loan Services, Inc. and
Wachovia Bank, National Association, as master servicers, J.E. Robert Company,
Inc., as special servicer, Wells Fargo Bank, N.A., as trustee and, LaSalle Bank
National Association as co-trustee, 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: [______________]; e-mail address:
[_____________________].
[NAME OF PARTY],
as [role]
By: _____________________________
Name:
Title:
EXHIBIT BB
SERVICING AND SUBSERVICING AGREEMENTS
Certain of the Mortgage Loans are subject to subservicing agreements as
set forth below.
Property Name Subservicer Name
--------------------------------------------------------------------------------
Pierre Suites ARCS
Skyline Bank of America
Park Place Apartments Beacon Realty Capital
455 West Fort Street Bernard Financial
Tates Creek South Shopping Center Capmark Finance Inc.
Boeing Lomita Campus CBRE/Melody
Jackson Park & Village Center Cohen Financial
Lara Springs Collateral Mortgage Capital, LLC
Tab 250 Ltd Collateral Mortgage Capital, LLC
University Centre East Collateral Mortgage Capital, LLC
McGaw Plaza Columbia National
Corona Auto Center Green Park Financial
Northwest Crossing Holliday Fenoglio Fowler
785 Market Street Holliday Fenoglio Fowler, L.P.
Cityview Centre Holliday Fenoglio Fowler, L.P.
North Stadium Business Park 1 Holliday Fenoglio Fowler, L.P.
North Stadium Business Park 2 Holliday Fenoglio Fowler, L.P.
Silverado Ranch Holliday Fenoglio Fowler, L.P.
Best Western- Monroe Laureate Capital
LA Fitness - Grand Prairie Newmark Realty Capital, Inc.
Granville Woods Business Center NorthMarq Capital
Mequon Research Center NorthMarq Capital
Waukesha Airport Business Center NorthMarq Capital
California Senior Plaza Red Mortgage Capital Inc
The Marketplace at Kapolei Red Mortgage Capital Inc
Colonia Del Rio Sierra
Hacienda Del Rio Sierra
Pinnacle Heights Sierra
Solana Wells Fargo Bank
EXHIBIT CC
SWAP CONTRACT RELATED TO THE CLASS A-2SFL CERTIFICATES
[Filed separately as Exhibits 10.7, 10.8 and 10.9 to this Form 8-K]
EXHIBIT DD
SWAP CONTRACT RELATED TO THE CLASS A-JFL CERTIFICATES
[Filed separately as Exhibits 10.10, 10.11 and 10.12 to this Form 8-K]
EXHIBIT EE
RELEASE OVERSIGHT LOANS
Loan # Property Name
20 Southland Mall
23 Long Island Marriott and Conference Center
24 The Orchard at Saddleback
29 90-100 Trinity Place
31 1515 Market Street
36 Crosswinds
41 Central Park
44 Hampton at Town Center
45 Arches
56 Fair Oaks Plaza
59 Cityview Centre
71 Demattia Portfolio
73 Old Mill Portfolio
75 Los Angeles Media Tech Center
85 Temecula Creek Plaza
95 Northwest Crossing
100 Park Place Apartments
113 One South King
130 7200 Fullerton
138 Vineyard Freeway Center
143 Santiago MHP
146 7175 N. Durango Dr.
149 McGaw Plaza
150 166 West 125th Street
164 7311 Greenhaven Drive
170 300 ParkBrooke Place
179 California Senior Plaza
182 Americana Plaza Shopping Center
188 Desert Winds Townhomes
196 Crosby Center
210 Belle Terre Shops
212 4055 West Peterson Avenue
219 Skylark MHP
EXHIBIT FF
TENANTS-IN-COMMON OVERSIGHT LOANS
Loan Number Property Name
73 Old Mill Portfolio
81 The Marketplace at Kapolei
83 College Suites-Murfreesboro TN
84 Sierra Center Mammoth Lakes
90 AT&T Pewaukee
95 Northwest Crossing
103 Metrocenter Business Park - Phoenix
108 Stonegate at Eagle's Landing
121 80 West Lancaster Avenue
140 Sierra Mobile Estates
152 Spring Creek Apartments (Austin)
162 Franklin Avenue & Whitley Avenue
219 Skylark MHP
226 WesBanco Bank Branch
SCHEDULE 1
----------
Mortgage Loans Containing Additional Debt
Loan Number Property Name
----------- -------------
3 Skyline
7 Solana
2 599 Lexington Avenue
18 90-100 Trinity Place
19 Pelican Point
40 Lembi Multifamily Portfolio
53 AmeriCold Pool 2
55 Anchor Government Assets
75 College Suites-Murfreesboro TN
100 Kimco PNP - Canyon Square Plaza
115 Brownstown Shopping Center
165 Bear Creek Apartments
204 Timberline Apartments
223 Timber Ridge Apartments
233 Turtle Creek Park
234 Village at Wingfield Apartments
93 Ross Retail Portfolio
46 Sawyer Portfolio
103 Walgreens Hermilin Portfolio (Pool 3)
121 Walgreens Hermilin Portfolio (Pool 2)
131 Walgreens Hermilin Portfolio (Pool 1)
191 Waukesha Airport Business Center
SCHEDULE 2
----------
Mortgage Loans which Initially Pay Interest Only
Loan Number Property Name
----------- -------------
169 Franklin Ave. & Whitley Ave.
2 599 Lexington Ave
18 90-100 Trinity Place
100 Kimco PNP - Canyon Square Plaza
46 Sawyer Portfolio
103 Walgreens Hermilin Portfolio (Pool 3)
121 Walgreens Hermilin Portfolio (Pool 2)
131 Walgreens Hermilin Portfolio (Pool 1)
13 Long Island Marriott and Conference Center
14 The Orchard at Saddleback
16 Center West
21 Hampton at Town Center
24 Americold Portfolio
38 2700-2800 Bronx Park East
43 Central Texas Marketplace
45 Fair Oaks Plaza
54 Pinnacle Heights
56 Addison at Wyndham
61 Hall Street
63 Worthington Meadows
67 Oakmead Terrace
72 Southbay Marketplace
73 The Marketplace at Kapolei
77 BGK College Suites at Campbell Lane
85 1691 Broadway
87 AT&T Pewaukee
89 15 West 39th Street
91 Jericho Office Park
95 260 West 36th Street
98 Park Place Apartments
99 Colonia Del Rio
105 Springhill
110 Delray Square
111 Hacienda Del Rio
116 961-979 Southern Blvd
120 Casa Lindas
135 308 East Lancaster Avenue
138 K-Mart Henderson, NV
139 180 - 190 O'Farrell Street
141 Orion Center
Loan Number Property Name
----------- -------------
145 Sunpointe Apartments
155 166 West 125th Street
166 Dicks Sporting Goods - Amherst NY
168 263 Old Country Road
175 Metro Self Storage - Sarasota
182 Rite Aid Portfolio (Pool 3)
186 400 Centennial Parkway
201 Walgreens Greer
202 Rite Aid Portfolio (Pool 2)
214 Rite Aid Portfolio (Pool 1)
240 645 Stewart Avenue
242 Walgreens - Lee's Summit, MO
1 Coconut Point
4 Lafayette Property Trust
15 Davies Pacific Center
42 Osprey Portfolio
48 Osprey Westlake and Lakewood Ranch
49 Cityview Centre
113 One South King
176 Pierre Suites
3 Skyline
64 Old Mill Portfolio
5 StratReal Industrial Portfolio II
142 Cedar Park Shopping Center
149 Legacy at Wesleyan
3.01 Seven Skyline Place
3.02 Eight Skyline Place
3.03 Six Skyline Place
3.04 Five Skyline Place
3.05 Two Skyline Place
3.06 Four Skyline Place
3.07 One Skyline Place
3.08 Three Skyline Place
5.01 Continental Tire
5.02 Rickenbacker III
5.03 South Park 9
5.04 Centerpoint II
5.05 CIC Memphis (Chichasaw Ind. Ctr.)
5.06 HP Memphis (Hewlett-Packard)
5.07 Memphis International
5.08 Mid-South Logistec Center VI
5.09 Woodland Industrial E. Beamer
5.10 Woodland Industrial Hanson Way
Loan Number Property Name
----------- -------------
64.01 Old Mill Business Center I
64.02 Old Mill Business Center II
64.03 Old Mill Village
4.01 1500 N. Beauregard St
4.02 1600 N. Beauregard St
4.03 1700 N. Beauregard St
4.04 1701 N Beauregard St.
4.05 1800 N. Beauregard St
4.06 1900 N Beauregard St
4.07 2000 N. Beauregard St.
4.08 4825 Mark Center Drive
4.09 4900 Seminary Road
24.01 5805 North Industrial Way
24.02 18531 U.S. 20 West
24.03 9501 SE McLoughlin Boulevard
24.04 14060 Dodd Road
42.01 Lake View at Hidden River
42.02 Palm Court at Hidden River
42.03 Tampa Oaks One
46.01 Whispering Palms
46.02 Boardwalk at Inverrary
48.01 Lakewood Ranch
48.02 West Lake Corporate Center I & II
121.01 845 North Federal Boulevard
121.02 NE Corner of Broadway and 109th Street
121.03 SW Corner of Monroe Street & Western Avenue
131.01 2498 Second Loop Road
131.02 133 West 8th Street
182.01 6101 North Broad Street
182.02 21 South Hope Chapel Road
202.01 104 Pedro Way
202.02 455 West Main Street
214.01 7500 Terry Road
214.02 7700 Shepherdsville Road
53 AmeriCold Pool 2
53.01 Clearfield
53.02 Murfreesboro
53.03 Connell
53.04 Strasburg
53.05 Amarillo
53.06 Thomasville
53.07 West Memphis
53.08 Russellville
53.09 Syracuse
Loan Number Property Name
----------- -------------
53.10 Atlanta
53.11 Babcock
53.12 Turlock
53.13 Nampa
53.14 Woodburn
53.15 Wichita
53.16 Fort Smith
53.17 Sebree
53.18 Boston
53.19 Bettendorf
53.20 Walla Walla
17 90 Broad Street
8 Blackhawk II - Phoenix
9 Colony Line 2 Pool C FIXED
36 Centro Heritage Portfolio 5
239 Colony Line 1 Pool C FIXED
7 Raven's Crossing
8.01 Solana
8.02 Boston Industrial - Auburn
8.03 Boston Industrial Tewksbury
8.04 Boston Industrial - Hopkinton
8.05 Pacifica Trenton
8.06 Tall Oaks
8.07 4343 on the Parkway
8.08 Woodlands at Riverside
8.09 7701 Southern Drive
8.10 Foster Road
8.11 Lennar Corporate Center
9.01 Table Mountain
9.02 Speedway Superstore
9.03 High Point Centre
9.04 Fairview Corners
9.05 Plainview Village Cener
9.06 Meridian Village
9.07 Sagamore Park Centre
9.08 Twin Oaks Centre
9.09 Terrace Mall
9.10 Roseville Center
9.11 Central Value Center
9.12 Burning Tree Plaza
9.13 Fox River Plaza
36.01 Liberty Corners
36.02 2601 West Kingsley
36.03 Lakeview at the Greens
Loan Number Property Name
----------- -------------
36.04 Howard Rose
160 Morton Rose
112 Corporate Fountains
75 College Suites-Murfreesboro TN
92 Northwest Crossing
39 Hollister Place Apartments - Houston
51 Tamiami West Shopping Center
52 Sierra Mobile Estates
79 Skylark MHP
88 Metrocenter Business Park - Phoenix
144 Pelican Point
151 Lembi Multifamily Portfolio
172 Ross Retail Portfolio
206 755 Green
106 940 Hayes
153 720 Jones
170 815 O'Farrell
203 1705 Octavia
208 626 Powell
213 1085 South Van Ness
137 1155 Jones
39.01 Southland Mall
39.02 Franklin Tower
39.03 1515 Market Street
39.04 Overland Park Trade Center
39.05 Boeing Lomita Campus
39.06 Temple U Health System Headquarters
143 Northrop Grumman
243 Paradise Village Gateway
19 Sierra Center Mammoth Lakes
40 Temecula Creek Plaza
40.01 Sheraton Charleston
40.02 400-1 / 400-2 Totten Pond Road
40.03 Tanque Verde Apartments
40.04 Hemet Village
40.05 785 Market Street
40.06 Quail Creek Apartments
40.07 Longford Plaza III
40.08 Simeon Portfolio
10 Sagebrook Apartments - Las Vegas, NV
11 State Street Market
20 Vineyard Freeway Center
37 200 Wireless Boulevard
50 7175 N. Durango Dr.
Loan Number Property Name
----------- -------------
60 Cooper's Landing IIB
78 Walgreen's Dallas
80 336 South Service Road
84 New Forest Crossing
86 Sanctuary at Avondale
104 Solomon Headquarters
107 Hotel Teatro
123 Hickory Ridge
127 Heritage Village & Parkside Apartments
128 Olde Towne
140 Cedar Ridge
212 Evergreen
219 Fairlington Office Park
69 Arches
22 Fountain Apartments
65 Augusta Mall
6 Riverview Office Bulding
108 Westgate Square Shopping Center
136 Apopka Regional Shopping Center
101 Clinton Plaza
114 West Market Shopping Center
220 Little River Square Shopping Center
238 Newmarket Shopping Center
109 Stonegate at Eagle's Landing
232 Ashley House Apartment Homes
74 College Green Executive Plaza
196 Watt-Fair Oaks Professional Centre
185 4055 West Peterson Ave
124 80 W. Lancaster Ave.
157 Spring Creek Apartments (Austin)
115 Brownstown Shopping Center
94 Remington Apartments
97 Wilshire Plaza
118 455 West Fort Street
126 Ashton Oaks Apartments
134 Scripps - Chula Vista
210 Jackson Park & Village Center
222 7200 Fullerton
225 Palm Ridge Shopping Center - San Diego
229 Browns Point
235 McCormick Place - Prescott
250 Trinidad Plaza
255 Tab 250 Ltd
257 Gateway Retail Center II
Loan Number Property Name
----------- -------------
259 Foxwood
187 Corona Auto Center
258 Lara Springs
161 Somerset
217 Conklin
161.01 Silverhawk Apartment Homes
161.02 Courtyard
82 University Centre East
93 LaSalle Bank Branch Portfolio
163 LaSalle Bank Branch
216 LaSalle Bank-4200 South Ashland
70 LaSalle Bank-Route 59
23 Timberline Apartments
59 Turtle Creek Park
62 3003 Woodbridge Avenue
133 National Hotel
147 Demattia Portfolio
159 Citizen News Bldg.
177 Santiago MHP
188 Wine Valley Inn
215 300 ParkBrooke Place
236 K-Mart Store - Oakdale
198 Hidden Park Apartments
62.01 Manchester Plaza
62.02 63-65 South Street - Hopkinton
62.03 Paradise Park ROC
62.04 The Chase Building
62.05 Madison Plaza
62.06 Eckerd Plaza - Niagara Street
62.07 Tates Creek South Shopping Center
62.08 Johnson Controls
62.09 Flint Group
204 Dow Corning
233 Plymouth Oaks I
184 City Transfer
189 Karmann
195 R.A. DeMattia
224 Tri-Star Fire Protection
237 Limbach Facility
76 Niskayuna Square
119 Hampton Inn & Suites - Montgomery
129 Airport Industrial Center
SCHEDULE 3
----------
Assumption Fees on Certain Mortgage Loans
Loan Number Property Name Assumption Fee
--------------------------------------------------------------------------------
1 Coconut Point 0.0000%
2 599 Lexington Ave 0.2500%
3 Skyline 10000
4 Lafayette Property Trust 100,000
StratReal Industrial
5 Portfolio II 0.5000%
6 Augusta Mall 25000
7 Solana 0.5000%
8 Lennar Corporate Center 0.2500%
9 Pacifica Trenton 0.2500%
10 7701 Southern Drive 0.2500%
11 AMLI on the Parkway 0.2500%
12 Woodlands at Riverside 0.2500%
13 Foster Road 0.2500%
14 Table Mountain 0.2500%
15 Tall Oaks 0.2500%
Boston Industrial -
16 Tewksbury 0.2500%
Boston Industrial -
17 Hopkinton 0.2500%
18 Boston Industrial - Auburn 0.2500%
19 Centro Heritage Portfolio 5 0.2500%
20 Southland Mall 0.0000%
21 Franklin Tower 150,000
22 Outrigger Guam Resort 1.0000%
Long Island Marriott and
23 Conference Center 1.0000%
24 The Orchard at Saddleback 0.2500%
25 Osprey Portfolio 200,000
26 Davies Pacific Center 0.0000%
27 Center West 0.2500%
28 90 Broad Street 0.2500%
29 90-100 Trinity Place 200,000
30 Pelican Point 1.0000%
31 1515 Market Street 0.5000%
32 Americold Pool 1 25,000
33 Sierra Springs 1.0000%
34 North Pointe - Riverside 1.0000%
35 Boardwalk / Park Place 1.0000%
36 Crosswinds 1.0000%
37 West View (West Lake) 1.0000%
38 2016 Riverside Office 1.0000%
39 Mountain View Townhouse 1.0000%
40 Mountain Gate 1.0000%
41 Central Park 1.0000%
42 Sherman Pointe 1.0000%
43 The Victorian 1.0000%
44 Hampton at Town Center 0.5000%
First -Waived; thereafter, 0.5%;
Lender's consent for first three
transfers will not be witheld provided
certain provisions per the loan
45 Arches documents.
46 Morton Rose 0.2500%
47 Howard Rose 0.2500%
48 Lakeview at the Greens 0.2500%
49 2601 West Kingsley 0.2500%
50 Overland Park Trade Center 0.2500%
51 2700-2800 Bronx Park East 1.0000%
53 Lembi Multifamily Portfolio 0.0500%
54 546 Broadway 1.0000%
55 San Tan Village Phase 2 1.0000%
56 Fair Oaks Plaza 1.0000%
57 Sawyer Portfolio 1.0000%
58 Silverado Ranch 0.0000%
59 Cityview Centre 0.2500%
60 Boeing Lomita Campus 1.0000%
61 AmeriCold Pool 2 0.0000%
62 Northrop Grumman 0.5000%
63 Pinnacle Heights 1.0000%
64 Addison at Wyndham 1.0000%
65 Anchor Government Assets 1.0000%
66 560 S. Winchester Blvd 1.0000%
67 Marriott Hotel Huntsville AL 0.0500%
68 National Hotel 1.0000%
69 Paradise Village Gateway 0.5000%
70 Hall Street 1.0000%
71 Demattia Portfolio 1.0000%
72 Worthington Meadows 1.0000%
73 Old Mill Portfolio 1.0000%
74 Fountain Apartments 0.5000%
75 Los Angeles Media Tech Center 0.5000%
76 Oakmead Terrace 0.2500%
77 Kimco PNP - Palomar Village SC 0.0000%
78 Hotel Teatro 0.2500%
79 The Hamptons 1.0000%
80 Southbay Marketplace 0.2500%
81 The Marketplace at Kapolei 0.2500%
82 Ashley House Apartment Homes $2,000 for 1st, 1% for subsequent.
83 College Suites-Murfreesboro TN 1.0000%
84 Sierra Center Mammoth Lakes 1.0000%
85 Temecula Creek Plaza 1.0000%
86 Sheraton Charleston 1.0000%
87 Remington Apartments 1.0000%
88 1691 Broadway 1.0000%
89 Tanque Verde Apartments 1.0000%
90 AT&T Pewaukee 1.0000%
91 Hemet Village 1.0000%
92 15 West 39th Street 1.0000%
93 Airport Business Park 1.0000%
94 Jericho Office Park 1.0000%
95 Northwest Crossing 1.0000%
96 455 West Fort Street 1.0000%
97 260 West 36th Street 1.0000%
98 Northwest Michigan Surgery Center 1.0000%
99 Ashton Oaks Apartments 1.0000%
100 Park Place Apartments 1.0000%
101 Colonia Del Rio 1.0000%
102 Kimco PNP - Canyon Square Plaza 0.0000%
103 Metrocenter Business Park - Phoenix 1.0000%
104 Hampton Inn & Suites - Beachwwod 1.0000%
105 Walgreens Hermilin Portfolio III 0.2500%
106 785 Market Street 0.2500%
107 Hickory Ridge 1.0000%
108 Stonegate at Eagle's Landing 1.0000%
109 Delray Square 0.2500%
110 Hacienda Del Rio 0.0000%
111 Corporate Fountains 1.0000%
112 Brownstown Shopping Center 1.0000%
113 One South King 0.0000%
114 961-979 Southern Blvd 1.0000%
115 Longford Plaza III 1.0000%
116 Hilton Midland Plaza 1.0000%
117 Scripps - Chula Vista 1.0000%
118 Niskayuna Square 1.0000%
119 Walgreens Hermilin Portfolio II 0.2500%
120 Chiquita Cold Storage Building 1.0000%
1 time at fee equal to the geater of
(a) $10,000, or (b) the product of (x)
the percentage of the respective
tenant-in-common ownership interest and
(y) one percent (1%) of the then unpaid
121 80 West Lancaster Avenue principal balance of the loan.
122 Ormond Beach Portfolio 1.0000%
123 Jackson Park & Village Center 1.0000%
124 Sagebrook Apartments - Las Vegas, NV 0.5000%
125 State Street Market 1.0000%
126 Hampton Inn & Suites - Montgomery 1.0000%
127 Hampton Inn & Suites - Munster 1.0000%
128 Walgreens Hermilin Portfolio I 0.2500%
129 North Stadium Business Park 1 0.2500%
131 Twin Oaks Apartments 1.0000%
132 Beth Boulevard Apartments 1.0000%
133 308 East Lancaster Avenue 0.5000%
134 Tamiami West Shopping Center 0.2500%
135 Riverview Office Bulding 0.5000%
136 K-Mart Henderson, NV 0.5000%
137 180 - 190 O'Farrell Street 1.0000%
138 Vineyard Freeway Center 1.0000%
139 Cedar Park Shopping Center 1.0000%
140 Sierra Mobile Estates 1.0000%
141 200 Wireless Boulevard 1.0000%
143 Santiago MHP 1.0000%
144 Mequon Research Center 0.5000%
145 Legacy at Wesleyan Three times at 1% each
146 7175 N. Durango Dr. 0.5000%
147 Ashley Furniture Retail Center - Bakersfield 1.0000%
148 Heritage Village & Parkside Apartments 1.0000%
149 McGaw Plaza 1.0000%
150 166 West 125th Street 1.0000%
151 Stor Gard Self Storage 1.0000%
152 Spring Creek Apartments (Austin) 1.0000%
153 Target Center Shops 1.0000%
154 Wine Valley Inn 1.0000%
155 LaSalle Bank Branch Portfolio Three times at 0.5% each
156 South Sierra Plaza Retail 1.0000%
157 Palm Ridge Shopping Center - San 1.0000%
158 Heritage Rock I & II 1.0000%
159 Dicks Sporting Goods - Amherst NY 0.0000%
160 263 Old Country Road 1.0000%
161 Faurecia Automotive Seating 1.0000%
162 Franklin Avenue & Whitley Avenue 1.0000%
163 Olde Towne 1.0000%
164 7311 Greenhaven Drive 1.0000%
165 Cooper's Landing IIB 1.0000%
166 Bear Creek Plaza 0.5000%
167 Quality Inn & Suites - Durham 1.0000%
168 Metro Self Storage - Sarasota 0.2500%
169 Pierre Suites 1.0000%
170 300 ParkBrooke Place 1.0000%
171 Hilton Garden Inn - Savannah Airport 1.0000%
172 LA Fitness - Grand Prairie 1.0000%
173 3605 Long Beach Blvd 1.0000%
174 Rite Aid Portfolio III 1.0000%
175 K-Mart Store - Oakdale 0.5000%
176 Watt-Fair Oaks Professional Centre 1.0000%
177 Courtyard 1.0000%
178 Manchester Plaza 1.0000%
179 California Senior Plaza 1.0000%
180 Waukesha Airport Business Center 0.5000%
181 Florida Retail Portfolio 0.5000%
182 Americana Plaza Shopping Center 1.0000%
184 63-65 South Street - Hopkinton 1.0000%
185 College Green Executive Plaza 1.0000%
186 Tates Creek South Shopping Center 1.0000%
187 Oceana Garage 1.0000%
188 Desert Winds Townhomes 1.0000%
189 Walgreens - Greer 1.0000%
190 Rite Aid Portfolio II 1.0000%
191 Cedar Ridge 1.0000%
192 Disney Office Building 1.0000%
193 Timberline Apartments 1.0000%
194 Walgreens - Dallas 1.0000%
195 Evergreen 1.0000%
196 Crosby Center 1.0000%
197 Browns Point 1.0000%
198 336 South Service Road 1.0000%
199 Fairlington Office Park 1.0000%
200 Aztec Office Building 1.0000%
201 Rite Aid Portfolio I 1.0000%
202 Paradise Park ROC 1.0000%
203 LaSalle Bank Branch Three times at 0.5% each
204 Sanctuary at Avondale 1.0000%
205 One Reservoir Avenue 1.0000%
206 The Chase Building 1.0000%
207 Turtle Creek Park 1.0000%
208 Tab 250 Ltd 1.0000%
209 Rite Aid - Washington, PA 1.0000%
210 Belle Terre Shoppes 1.0000%
211 Hampton Inn - Painted Post 0.2500%
212 4055 West Peterson Avenue 1.0000%
213 Foxwood 1.0000%
214 Madison Plaza 1.0000%
215 645 Stewart Avenue 1.0000%
216 Solomon Headquarters 1.0000%
217 Walgreens - Lee's Summit 1.0000%
218 Granville Woods Business Center 0.5000%
219 Skylark MHP 1.0000%
220 Broadway Plaza East 1.0000%
221 Corona Auto Center 1.0000%
222 Best Western- Monroe 1.0000%
223 Meadow Ridge 1.0000%
224 North Stadium Business Park 2 0.2500%
225 Lara Springs 1.0000%
226 WesBanco Bank Branch 1.0000%
227 Somerset 1.0000%
228 University Centre East 1.0000%
229 Conklin 1.0000%
SCHEDULE 4
----------
Mortgage Loans with Earnouts, Holdbacks or Letters of Credit
Loan Number Property Name
----------- -------------
187 Courtyard
191 Waukesha Airport Business Center
209 Crosby Center
48.01 Lakewood Ranch
7 Solana
113 One South King
243 Skylark MHP
229 Gateway Retail Center II
24 Jogani Portfolio
27 Central Park
28 Crosswinds
190 California Senior Plaza
79 Temecula Creek Plaza
55 Anchor Government Assets
42 Osprey Portfolio
