EXHIBIT 4
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.,
Depositor
CAPMARK FINANCE INC.,
Master Servicer No. 1
XXXXX FARGO BANK, N.A.,
Master Servicer No. 2
LNR PARTNERS, INC.,
Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION,
Trustee and Paying Agent
POOLING AND SERVICING AGREEMENT
Dated as of
June 14, 2007
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-CIBC19
Commercial Mortgage Pass-Through Certificates
Series 2007-CIBC19
TABLE OF CONTENTS
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........................................
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Master Servicers to Act as Master Servicers; Special
Servicer to Act as Special Servicer; Administration of
the Mortgage Loans..........................................
Section 3.02 Collection of Mortgage Loan Payments.........................
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts..........................................
Section 3.04 The Certificate Account, the Lower-Tier and Upper-Tier
Distribution Accounts, the Companion Distribution
Account, the Interest Reserve Account and the
Gain-on-Sale Reserve Account................................
Section 3.05 Permitted Withdrawals from the Certificate Accounts, the
Distribution Accounts and the Companion Distribution
Account.....................................................
Section 3.06 Investment of Funds in the Certificate Accounts and the
REO Account.................................................
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.......................................
Section 3.08 Enforcement of Due-on-Sale Clauses; Assumption Agreements....
Section 3.09 Realization Upon Defaulted Mortgage Loans....................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.11 Servicing Compensation.......................................
Section 3.12 Inspections; Collection of Financial Statements..............
Section 3.13 [Reserved]...................................................
Section 3.14 [Reserved]...................................................
Section 3.15 Access to Certain Information................................
Section 3.16 Title to REO Property; REO Account...........................
Section 3.17 Management of REO Property...................................
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties..........
Section 3.19 Additional Obligations of Master Servicer and Special
Servicer....................................................
Section 3.20 Modifications, Waivers, Amendments and Consents..............
Section 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Recordkeeping; Asset Status Report................
Section 3.22 Sub-Servicing Agreements.....................................
Section 3.23 Representations, Warranties and Covenants of the Master
Servicers...................................................
Section 3.24 Representations, Warranties and Covenants of the Special
Servicer....................................................
Section 3.25 Interest Reserve Account.....................................
Section 3.26 [Reserved]...................................................
Section 3.27 Directing Certificateholder Contact with Master Servicers
and Special Servicer........................................
Section 3.28 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of
Directing Certificateholder.................................
Section 3.29 Intercreditor Agreements.....................................
Section 3.30 Companion Paying Agent.......................................
Section 3.31 Companion Register...........................................
Section 3.32 Certain Matters Relating to the 000 Xxxxxxxxx Xxxxxx
Mortgage Loan...............................................
Section 3.33 Certain Matters Relating to the AmeriCold Portfolio
Mortgage Loan...............................................
Section 3.34 Litigation Control...........................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions................................................
Section 4.02 Statements to Certificateholders; CMSA Investor Reporting
Package (IRP)s; Grant of Power of Attorney..................
Section 4.03 P&I Advances.................................................
Section 4.04 Allocation of Collateral Support Deficit.....................
Section 4.05 Appraisal Reductions.........................................
Section 4.06 Certificate Deferred Interest................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................
Section 5.02 Registration of Transfer and Exchange of Certificates........
Section 5.03 Book-Entry Certificates......................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.05 Persons Deemed Owners........................................
Section 5.06 Certificate Ownership Certification..........................
Section 5.07 Appointment of Paying Agent..................................
ARTICLE VI
THE DEPOSITOR, THE MASTER 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 Depositor, 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 Trustee as Maker of Advances.................................
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE PAYING AGENT
Section 8.01 Duties of the Trustee and the Paying Agent...................
Section 8.02 Certain Matters Affecting the Trustee and the Paying
Agent.......................................................
Section 8.03 Trustee and Paying Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans...............
Section 8.04 Trustee or Paying Agent May Own Certificates.................
Section 8.05 Fees and Expenses of Trustee and Paying Agent;
Indemnification of Trustee and Paying Agent.................
Section 8.06 Eligibility Requirements for Trustee and Paying Agent........
Section 8.07 Resignation and Removal of the Trustee and Paying Agent......
Section 8.08 Successor Trustee or Paying Agent............................
Section 8.09 Merger or Consolidation of Trustee or Paying Agent...........
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
Section 8.11 Appointment of Custodians....................................
Section 8.12 Access to Certain Information................................
Section 8.13 Representations and Warranties of the Trustee................
Section 8.14 Representations and Warranties of the Paying Agent...........
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans..............................................
Section 9.02 Additional Termination Requirements..........................
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration.........................................
Section 10.02 Use of Agents................................................
Section 10.03 Depositor, Master Servicers and Special Servicer to
Cooperate with Paying Agent.................................
Section 10.04 Appointment of REMIC Administrators..........................
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness........................
Section 11.02 Succession; Subcontractors...................................
Section 11.03 Filing Obligations...........................................
Section 11.04 Form 10-D Filings............................................
Section 11.05 Form 10-K Filings............................................
Section 11.06 Xxxxxxxx-Xxxxx Certification.................................
Section 11.07 Form 8-K Filings.............................................
Section 11.08 Form 15 Filing...............................................
Section 11.09 Annual Compliance Statements.................................
Section 11.10 Annual Reports on Assessment of Compliance with Servicing
Criteria....................................................
Section 11.11 Annual Independent Public Accountants' Attestation Report....
Section 11.12 Indemnification..............................................
Section 11.13 Amendments...................................................
Section 11.14 Regulation AB Notices........................................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment....................................................
Section 12.02 Recordation of Agreement; Counterparts.......................
Section 12.03 Limitation on Rights of Certificateholders...................
Section 12.04 Governing Law................................................
Section 12.05 Notices......................................................
Section 12.06 Severability of Provisions...................................
Section 12.07 Grant of a Security Interest.................................
Section 12.08 Successors and Assigns; Third Party Beneficiaries............
Section 12.09 Article and Section Headings.................................
Section 12.10 Notices to the Rating Agencies...............................
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-3 Certificate
Exhibit A-4 Form of Class A-4 Certificate
Exhibit A-5 Form of Class SB Certificate
Exhibit A-6 Form of Class A-1A Certificate
Exhibit A-7 Form of Class X Certificate
Exhibit A-8 Form of Class A-M Certificate
Exhibit A-9 Form of Class A-J Certificate
Exhibit A-10 Form of Class B Certificate
Exhibit A-11 Form of Class C Certificate
Exhibit A-12 Form of Class D Certificate
Exhibit A-13 Form of Class E Certificate
Exhibit A-14 Form of Class F Certificate
Exhibit A-15 Form of Class G Certificate
Exhibit A-16 Form of Class H Certificate
Exhibit A-17 Form of Class J Certificate
Exhibit A-18 Form of Class K Certificate
Exhibit A-19 Form of Class L Certificate
Exhibit A-20 Form of Class M Certificate
Exhibit A-21 Form of Class N Certificate
Exhibit A-22 Form of Class P Certificate
Exhibit A-23 Form of Class Q Certificate
Exhibit A-24 Form of Class NR Certificate
Exhibit A-25 Form of Class R Certificate
Exhibit A-26 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Investment Representation Letter
Exhibit D-1 Form of Transfer Affidavit
Exhibit D-2 Form of Transferor Letter
Exhibit E Form of Request for Release
Exhibit F Form of ERISA Representation Letter
Exhibit G Form of Statement to Certificateholders
Exhibit H Form of Omnibus Assignment
Exhibit I-1 Form of Regulation S Transfer Certificate during Restricted
Period
Exhibit I-2 Form of Regulation S Transfer Certificate after Restricted
Period
Exhibit J Form of Purchase Option Notice
Exhibit K Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate during
Restricted Period
Exhibit L [Reserved]
Exhibit M Controlling Class Certificateholder's Reports Checklist
Exhibit N Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate after
Restricted Period
Exhibit O Form of Transfer Certificate of Regulation S Book-Entry
Certificate to Rule 144A Global Book-Entry Certificate during
Restricted Period
Exhibit P Form of Transfer Certificate for Regulation S Book-Entry
Certificate during Restricted Period
Exhibit Q Initial Companion Holders
Exhibit R Form of Notice and Certification Regarding Defeasance of
Mortgage Loan
Exhibit S Information Request from Certificateholder, Beneficial Owner
or Prospective Purchaser
Exhibit T Trustee Certification/Exception Report
Exhibit U-1 Form of Notice Relating to the 000 Xxxxxxxxx Xxxxxx Mortgage
Loan
Exhibit U-2 Form of Notice Relating to the AmeriCold Portfolio Mortgage
Loan
Exhibit V Form Certification to be Provided with Form 10-K
Exhibit W-1 Form of Certification to be Provided to Depositor by Paying
Agent
Exhibit W-2 Form of Certification to be Provided to Depositor by Master
Servicer
Exhibit W-3 Form of Certification to be Provided to Depositor by Special
Servicer
Exhibit X Servicing Criteria to be Addressed in Assessment of Compliance
Exhibit Y Additional Form 10-D Disclosure
Exhibit Z Additional Form 10-K Disclosure
Exhibit AA Form 8-K Disclosure Information
Exhibit BB Additional Disclosure Notification
Exhibit CC Servicing and Subservicing Agreements
Exhibit DD Servicing Function Participants
Exhibit EE Form of Annual Compliance Statement
Exhibit FF Form of Report on Assessment of Compliance with Servicing
Criteria
SCHEDULES
Schedule 1 Mortgage Loans Containing Additional Debt
Schedule 2 Mortgage Loans that Initially Pay Interest Only
Schedule 3 Class A-SB Planned Principal Balance Schedule
Schedule 4 Earnouts and Holdbacks
This Pooling and Servicing Agreement (the "Agreement") is dated and
effective as of June 14, 2007, among X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., as Depositor, Capmark Finance Inc., as Master Servicer No. 1,
Xxxxx Fargo Bank, N.A., as Master Servicer No. 2, LNR Partners, Inc., as Special
Servicer, and LaSalle Bank National Association, as Trustee and as Paying Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which in the aggregate will evidence the
entire beneficial ownership interest in the trust fund (the "Trust Fund") to be
created hereunder, the primary assets of which will be a pool of commercial,
multifamily and manufactured housing community mortgage loans (the "Mortgage
Loans"). As provided herein, the Paying Agent shall elect or shall cause an
election to be made to treat the Trust Fund for federal income tax purposes as
two separate real estate mortgage investment conduits (the "Upper-Tier REMIC"
and the "Lower-Tier REMIC" as described herein).
LOWER-TIER REMIC
The Class XX-0, Xxxxx XX-0X, Xxxxx XX-0, Class LA-3, Class LA-4,
Class LA-SB, Class LA-M, Class LA-J, Class LB, Class LC, Class LD, Class LE,
Class LF, Class LG, Class LH, Class LJ, Class LK, Class LL, Class LM, Class LN,
Class LP, Class LQ, and Class LNR Uncertificated Interests will evidence
"regular interests" in the Lower-Tier REMIC created hereunder. The sole Class of
"residual interests" in the Lower-Tier REMIC will be evidenced by the Class LR
Certificates.
The following table sets forth the Original Lower-Tier Principal
Amounts and per annum rates of interest for the Uncertificated Lower-Tier
Interests and the Class LR Certificates:
Original Lower-Tier
Class Designation Interest Rate Principal Amount
------------------------- ---------------------- ------------------------
Class LA-1 (1) $ 52,983,000
Class LA-2 (1) $151,614,000
Class LA-3 (1) $180,000,000
Class LA-4 (1) $1,195,030,000
Class LA-SB (1) $117,589,000
Class LA-1A (1) $595,708,000
Class LA-M (1) $327,561,000
Class LA-J (1) $262,048,000
Class LB (1) $ 24,567,000
Class LC (1) $ 36,851,000
Class LD (1) $ 32,756,000
Class LE (1) $ 49,134,000
Class LF (1) $ 36,851,000
Class LG (1) $ 40,945,000
Class LH (1) $ 32,756,000
Class LJ (1) $ 40,945,000
Class LK (1) $ 8,189,000
Class LL (1) $ 8,189,000
Class LM (1) $ 16,378,000
Class LN (1) $ 8,189,000
Class LP (1) $ 4,094,000
Class Q (1) $ 12,284,000
Class LNR (1) $ 40,945,503
Class LR None(2) None (2)
---------------
(1) The interest rate for such Class of Uncertificated Lower-Tier Interests
shall be the Weighted Average Net Mortgage Rate.
(2) The Class LR Certificates will not have a Certificate Balance or a
Notional Amount, will not bear interest and will not be entitled to
distributions of Yield Maintenance Charges. Any Available Distribution
Amount remaining in the Lower-Tier Distribution Account after distributing
the Lower-Tier Distribution Amount shall be distributed to the Holders of
the Class LR Certificates (but only to the extent of the Available
Distribution Amount for such Distribution Date, if any, remaining in the
Lower-Tier Distribution Account).
UPPER-TIER REMIC
The Class A-1, Class A-2, Class X-0, Xxxxx X-0, Class A-SB, Class
A-1A, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J, Class K, Class L, Class M, Class N, Class P, Class Q, Class
NR and Class X Certificates will evidence "regular interests" in the Upper-Tier
REMIC created hereunder. The sole Class of "residual interests" in the
Upper-Tier REMIC created hereunder will be evidenced by the Class R
Certificates.
The following table sets forth the designation, the pass-through
rate (the "Pass-Through Rate"), the aggregate initial principal amount (the
"Original Certificate Balance") or Notional Amount (the "Original Notional
Amount"), as applicable, and the initial ratings given each Class by the Rating
Agencies for each Class of Certificates comprising the interests in the
Upper-Tier REMIC created hereunder:
Original
Initial Certificate
Pass-Through Balance or Ratings(1)
Rate Notional Amount (Xxxxx'x/S&P)
--------------- ------------------ --------------
Class A-1 Certificates(2) 5.5380% $ 52,983,000 Aaa/AAA
Class A-2 Certificates(2) 5.8150%(3) $ 151,614,000 Aaa/AAA
Class A-3 Certificates(2) 5.7470%(4) $ 180,000,000 Aaa/AAA
Class A-4 Certificates(2) 5.7470%(4) $1,195,030,000 Aaa/AAA
Class A-SB Certificates(2) 5.7230%(5) $ 117,589,000 Aaa/AAA
Class A-1A Certificates(2) 5.7470%(4) $ 595,708,000 Aaa/AAA
Class A-M Certificates 5.7470%(4) $ 327,561,000 Aaa/AAA
Class A-J Certificates 5.7470%(4) $ 262,048,000 Aaa/AAA
Class B Certificates 5.7470%(4) $ 24,567,000 Aa1/AA+
Class C Certificates 5.7470%(4) $ 36,851,000 Aa2/AA
Class D Certificates 5.7470%(4) $ 32,756,000 Aa3/AA-
Class E Certificates 5.7470%(4) $ 49,134,000 A2/A
Class F Certificates 5.7470%(4) $ 36,851,000 A3/A-
Class G Certificates 5.7470%(4) $ 40,945,000 Baa1/BBB+
Class H Certificates 5.7470%(4) $ 32,756,000 Baa2/BBB
Class J Certificates 5.7470%(3) $ 40,945,000 Baa3/BBB-
Class K Certificates 5.4700%(3) $ 8,189,000 Ba1/BB+
Class L Certificates 5.4700%(3) $ 8,189,000 Ba2/BB
Class M Certificates 5.4700%(3) $ 16,378,000 Ba3/BB-
Class N Certificates 5.4700%(3) $ 8,189,000 B1/B+
Class P Certificates 5.4700%(3) $ 4,094,000 B2/B
Class Q Certificates 5.4700%(3) $ 12,284,000 B3/B-
Class NR Certificates 5.4700%(3) $ 40,945,503 */*
Class R Certificates N/A(6) N/A(6) */*
Class X Certificates 0.0123%(7) $3,275,606,503(8) Aaa/AAA
-----------------
(1) The Certificates marked with an asterisk have not been rated by the
applicable Rating Agency.
(2) For purposes of making distributions to the Class A-1, Class A-2 Class
A-3, Class A-4, Class A-SB and Class A-1A Certificates, the pool of
Mortgage Loans will be deemed to consist of two distinct Loan Groups, Loan
Group 1 and Loan Group 2.
(3) Subject to a maximum Pass-Through Rate equal to the Weighted Average Net
Mortgage Rate.
(4) The Pass-Through Rate for any Distribution Date for the Class A-3, Class
A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class J Certificates will be the Weighted
Average Net Mortgage Rate.
(5) The Pass-Through Rate for any Distribution Date for the Class A-SB
Certificates will be a per annum rate equal to the Weighted Average Net
Mortgage Rate for the Distribution Date minus 0.1780%.
(6) The Class R Certificates will not have a Certificate Balance or a Notional
Amount, will not bear interest and will not be entitled to distributions
of Yield Maintenance Charges. Any Available Distribution Amount remaining
in the Upper-Tier Distribution Account, after all required distributions
under this Agreement have been made to each other Class of Certificates,
will be distributed to the Holders of the Class R Certificates.
(7) The Pass-Through Rate for the Class X Certificates will be calculated in
accordance with the definition of "Class X Pass-Through Rate".
(8) 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
$3,275,606,504.
The 000 Xxxxxxxxx Xxxxxx Companion Loans, the AmeriCold Portfolio
Companion Loans, the Green Hills Corporate Center Companion Loan, the ABB
Automation, Inc. Companion Loan, the Cumberland Tech Center Companion Loan, the
Holiday Inn Express-Temecula Companion Loan and the Veteran's Parkway 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 and the AmeriCold
Portfolio 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 (other than the 000 Xxxxxxxxx Xxxxxx Companion Loans
and the AmeriCold Portfolio 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 Companion Loans. The 000
Xxxxxxxxx Xxxxxx Companion Loans consist of the 000 Xxxxxxxxx Xxxxxx A1
Companion Loan, the 000 Xxxxxxxxx Xxxxxx A3 Companion Loan and the 000 Xxxxxxxxx
Xxxxxx A4 Companion Loan. The 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the 000
Xxxxxxxxx Xxxxxx Companion Loans are pari passu with each other. The 000
Xxxxxxxxx Xxxxxx Mortgage Loan is part of the Trust Fund. The 000 Xxxxxxxxx
Xxxxxx Companion Loans are not part of the Trust Fund. The 000 Xxxxxxxxx Xxxxxx
Mortgage Loan and the 000 Xxxxxxxxx Xxxxxx Companion Loans will be serviced and
administered in accordance with the 0000-XXX00 Xxxxxxx Agreement and the 000
Xxxxxxxxx Xxxxxx Intercreditor Agreement.
The AmeriCold Portfolio Whole Loan consists of the AmeriCold
Portfolio Mortgage Loan and the AmeriCold Portfolio Companion Loans. The
AmeriCold Portfolio Companion Loans consist of the AmeriCold Portfolio A-1A
Companion Loan, the AmeriCold Portfolio A-1B Companion Loan, the AmeriCold
Portfolio A-2A Companion Loan and the AmeriCold Portfolio A-2B Companion Loan.
The AmeriCold Portfolio Mortgage Loan and the AmeriCold Portfolio Companion
Loans are pari passu with each other. The AmeriCold Portfolio Mortgage Loan is
part of the Trust Fund. The AmeriCold Portfolio Companion Loans are not part of
the Trust Fund. The AmeriCold Portfolio Mortgage Loan and the AmeriCold
Portfolio Companion Loans will be serviced and administered in accordance with
the 2007-CIBC18 Pooling Agreement and the AmeriCold Portfolio Intercreditor
Agreement.
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement,
including in the Preliminary Statement, the following capitalized terms, unless
the context otherwise requires, shall have the meanings specified in this
Article.
"10-K Filing Deadline": As defined in Section 11.05.
"30/360 Mortgage Loans": The Mortgage Loans indicated as such in the
Mortgage Loan Schedule.
"599 Lexington Avenue A1 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 000 Xxxxxxxxx Xxxxxx 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 000 Xxxxxxxxx Xxxxxx
Mortgage 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 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 000 Xxxxxxxxx Xxxxxx 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 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 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 000 Xxxxxxxxx Xxxxxx 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 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 Loans": Collectively, the 000
Xxxxxxxxx Xxxxxx A1 Companion Loan, the 000 Xxxxxxxxx Xxxxxx A3 Companion Loan
and the 000 Xxxxxxxxx Xxxxxx A4 Companion Loan.
"599 Lexington Avenue Co-Trustee": The "Co-Trustee" under the
0000-XXX00 Xxxxxxx Agreement, which as of the date hereof is LaSalle Bank
National Association.
"599 Lexington Avenue Event of Default": An "Event of Default" as
defined under the 000 Xxxxxxxxx Xxxxxx Whole Loan documents.
"599 Lexington Avenue Intercreditor Agreement": That certain
Intercreditor Agreement among the noteholders, dated as of February 12, 2007, by
and among the holders of the 000 Xxxxxxxxx Xxxxxx Companion Loans and the holder
of the 000 Xxxxxxxxx Xxxxxx Mortgage Loan, 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 Majority Holder": With respect to the 000
Xxxxxxxxx Xxxxxx Whole Loan, the "Majority Lenders" as defined in the 000
Xxxxxxxxx Xxxxxx Intercreditor Agreement.
"599 Lexington Avenue Master Servicer": Master Servicer No. 1 under
the 0000-XXX00 Xxxxxxx Agreement, which as of the date hereof is Midland Loan
Services, Inc.
"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. 1 on the Mortgage Loan Schedule), which is
designated as promissory note A2 and is pari passu in right of payment with the
000 Xxxxxxxxx Xxxxxx Companion Loans to the extent set forth in the 000
Xxxxxxxxx Xxxxxx Intercreditor Agreement.
"599 Lexington Avenue Mortgaged Property": The Mortgaged Property
which secures the 000 Xxxxxxxxx Xxxxxx Whole Loan.
"599 Lexington Avenue Notes": The 000 Xxxxxxxxx Xxxxxx Mortgage Loan
and the 000 Xxxxxxxxx Xxxxxx Companion Loans.
"599 Lexington Avenue Special Servicer": The "Special Servicer"
under the 0000-XXX00 Xxxxxxx Agreement, which as of the date hereof is X.X.
Xxxxxx Company, Inc.
"599 Lexington Avenue Trust": The X.X. Xxxxxx Chase Commercial
Mortgage Securities Trust 2007-LDP10, which is administered pursuant to the
0000-XXX00 Xxxxxxx Agreement.
"599 Lexington Avenue Trustee": The "Trustee" under the 0000-XXX00
Xxxxxxx Agreement, which as of the date hereof is Xxxxx Fargo Bank, N.A.
"599 Lexington Avenue Whole Loan": The 000 Xxxxxxxxx Xxxxxx Mortgage
Loan, together with the 000 Xxxxxxxxx Xxxxxx 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 Mortgage Loan
and the 000 Xxxxxxxxx Xxxxxx Companion Loans.
"2007-CIBC18 Pooling Agreement": The (i) pooling and servicing
agreement, dated as of March 7, 2007, among the Depositor, as depositor, Capmark
Finance Inc., as master servicer, ARCap Servicing, Inc., as a special servicer,
LNR Partners, Inc., as a special servicer, Midland Loan Services, Inc., as a
primary servicer and Xxxxx Fargo Bank, N.A., as trustee and as paying agent, as
from time to time amended, supplemented or modified relating to the issuance of
the X.X. Xxxxxx Commercial Mortgage Securities Trust 2007-CIBC18, Commercial
Mortgage Pass-Through Certificates, Series 2007-CIBC18 or (ii) any successor
pooling and servicing agreement entered into pursuant to the AmeriCold Portfolio
Intercreditor Agreement.
"2007-LDP10 Pooling Agreement": (i) pooling and servicing agreement,
dated as of March 1, 2007, among the Depositor, 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, as from time to time amended, supplemented or modified relating to
the issuance of the X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2007-LDP10, Commercial Mortgage Pass-Through Certificates, Series 2007-LDP10 or
(ii) any successor pooling and servicing agreement entered into pursuant to the
000 Xxxxxxxxx Xxxxxx Intercreditor Agreement.
"ABB Automation, Inc. 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 ABB Automation, Inc. AB Mortgage
Loan.
"ABB Automation, Inc. AB Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as Mortgage Loan No. 23.
"ABB Automation, Inc. Intercreditor Agreement": That certain
Intercreditor Agreement Among Note Holders, dated as of February 28, 2007, by
and between CIBC Inc., as the A Note Holder, and Mezz Cap Finance, LLC, as the B
Note Holder. The ABB Automation, Inc. Intercreditor Agreement relates to the ABB
Automation, Inc. AB Mortgage Loan.
"AB Mortgage Loan": As defined in the recitals to this Agreement.
"Acceptable Insurance Default": With respect to any Mortgage Loan or
Loan Pair, other than the 000 Xxxxxxxxx Xxxxxx Mortgage Loan or the AmeriCold
Portfolio Mortgage Loan or a Mortgage Loan or a Loan Pair that expressly
requires the Mortgagor to maintain insurance coverage for acts of terrorism (or
that expressly requires the Mortgagor to maintain insurance coverage for acts of
terrorism but limits the amount that must be spent by the Mortgagor for the
related premium), a default under the related Mortgage Loan documents arising by
reason of (i) any failure on the part of the related Mortgagor to maintain with
respect to the related Mortgaged Property specific insurance coverage with
respect to, or an all-risk casualty insurance policy that does not specifically
exclude, terrorist or similar acts, and/or (ii) any failure on the part of the
related Mortgagor to maintain with respect to the related Mortgaged Property
insurance coverage with respect to damages or casualties caused by terrorist or
similar acts upon terms not materially less favorable than those in place as of
the Closing Date, in each case as to which default the applicable Master
Servicer and the Special Servicer may forbear taking any enforcement action,
provided that the Special Servicer has determined, in its reasonable judgment,
based on inquiry consistent with the Servicing Standards and with the consent of
the Directing Certificateholder (or, with respect to the 000 Xxxxxxxxx Xxxxxx
Whole Loan, subject to the consent of the 000 Xxxxxxxxx Xxxxxx Majority Holder
or, with respect to the AmeriCold Portfolio Whole Loan, subject to the consent
of the AmeriCold Portfolio Directing Certificateholder), that either (a) such
insurance is not available at commercially reasonable rates and that such
hazards are not at the time commonly insured against for properties similar to
the related Mortgaged Property and located in or around the region in which such
related Mortgaged Property is located, or (b) such insurance is not available at
any rate; provided, however, the Directing Certificateholder (or, with respect
to the 000 Xxxxxxxxx Xxxxxx Whole Loan, subject to the consent of the 000
Xxxxxxxxx Xxxxxx Majority Holder or, with respect to the AmeriCold Portfolio
Whole Loan, subject to the consent of the AmeriCold Portfolio Directing
Certificateholder) will not have more than 30 days to respond to the Special
Servicer's request for consent thereto, or to object after notice thereof;
provided, further, that upon the Special Servicer's determination, consistent
with the Servicing Standards, that exigent circumstances do not allow the
Special Servicer to obtain the consent of the Directing Certificateholder (or,
with respect to the 000 Xxxxxxxxx Xxxxxx Whole Loan, subject to the consent of
the 000 Xxxxxxxxx Xxxxxx Majority Holder or, with respect to the AmeriCold
Portfolio Whole Loan, subject to the consent of the AmeriCold Portfolio
Directing Certificateholder), the Special Servicer will not be required to do
so. The Special Servicer shall be entitled to rely on insurance consultants in
making the determinations described above. The costs of such insurance
consultants shall be paid from the applicable Certificate Account as a Servicing
Advance to the extent the Mortgage Loan documents do not prohibit such amounts
from being collected from the related Mortgagor and otherwise as an expense of
the Trust Fund. In no event shall a Workout Fee be payable in connection with
the resolution of an Acceptable Insurance Default.
"Accrued Certificate Interest": With respect to each Distribution
Date and each Class of Regular Certificates, an amount equal to interest for the
related Interest Accrual Period at the Pass-Through Rate of such Class of
Certificates, 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 and
Residual Certificates) that had an increase to its Certificate Balance as a
result of a recovery of Nonrecoverable Advances, an amount equal to interest at
the Pass-Through Rate applicable to that Class on the amount of such increase to
its Certificate Balance accrued from the Distribution Date on which Collateral
Support Deficit was allocated to such Class as a result of the reimbursement of
Nonrecoverable Advances from the Trust to, but not including, the Distribution
Date on which the Certificate Balance was so increased.
"Act": The Securities Act of 1933, as it may be amended from time to
time.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in
the Mortgage Loan Schedule.
"Additional Debt": With respect to any Mortgage Loan, any debt owed
by the related Mortgagor to a party other than the lender under such Mortgage
Loan as of the Closing Date as set forth on Schedule 1 hereto, as increased or
decreased from time to time pursuant to the terms of the related subordinate or
pari passu loan documents (including any intercreditor agreement or
subordination agreement).
"Additional Disclosure Notification": The form of notification to be
included with any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or Form 8-K Disclosure Information which is attached hereto as
Exhibit BB.
"Additional Exclusions": Exclusions in addition to those customarily
found in the insurance policies for mortgaged properties similar to the
Mortgaged Properties on September 11, 2001.
"Additional Form 10-D Disclosure": As defined in Section 11.04.
"Additional Form 10-K Disclosure": As defined in Section 11.05.
"Additional Servicer": Each Affiliate of the applicable Master
Servicer, the Special Servicer or either Mortgage Loan Seller that services any
of the Mortgage Loans and each Person who is not an Affiliate of the applicable
Master Servicer, other than the Special Servicer, who services 10% or more of
the Mortgage Loans.
"Administrative Cost Rate": With respect to each Mortgage Loan, the
sum of the Servicing Fee Rate and the Trustee Fee Rate, in each case computed on
the basis of the Stated Principal Balance of the related Mortgage Loan and in
the same manner as interest is calculated on such Mortgage Loan.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent": As defined in Section 5.02(c)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"AmeriCold Portfolio A-1A Companion Loan": With respect to the
AmeriCold Portfolio Whole Loan, the related promissory note made by the related
mortgagor and secured by the mortgage on the AmeriCold Portfolio 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 Portfolio
Mortgage Loan, to the extent set forth in the related Mortgage Loan documents
and as provided in the AmeriCold Portfolio Intercreditor Agreement.
"AmeriCold Portfolio A-1B Companion Loan": With respect to the
AmeriCold Portfolio Whole Loan, the related promissory note made by the related
mortgagor and secured by the mortgage on the AmeriCold Portfolio 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 Portfolio
Mortgage Loan, to the extent set forth in the related Mortgage Loan documents
and as provided in the AmeriCold Portfolio Intercreditor Agreement.
"AmeriCold Portfolio A-2A Companion Loan": With respect to the
AmeriCold Portfolio Whole Loan, the related promissory note made by the related
mortgagor and secured by the mortgage on the AmeriCold Portfolio 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 Portfolio
Mortgage Loan, to the extent set forth in the related Mortgage Loan documents
and as provided in the AmeriCold Portfolio Intercreditor Agreement.
"AmeriCold Portfolio A-2B Companion Loan": With respect to the
AmeriCold Portfolio Whole Loan, the related promissory note made by the related
mortgagor and secured by the mortgage on the AmeriCold Portfolio Mortgaged
Property and designated as promissory note A-2B, which is not included in the
Trust and which is pari passu in right of payment to the AmeriCold Portfolio
Mortgage Loan, to the extent set forth in the related Mortgage Loan documents
and as provided in the AmeriCold Portfolio Intercreditor Agreement.
"AmeriCold Portfolio Companion Loans": Collectively, the AmeriCold
Portfolio A-1A Companion Loan, the AmeriCold Portfolio A-1B Companion Loan, the
AmeriCold Portfolio A-2A Companion Loan and the AmeriCold Portfolio A-2B
Companion Loan.
"AmeriCold Portfolio Directing Certificateholder": With respect to
the AmeriCold Portfolio Whole Loan, the holder of the AmeriCold Portfolio A-1A
Companion Loan.
"AmeriCold Portfolio Event of Default": An "Event of Default" as
defined under the AmeriCold Portfolio Whole Loan documents.
"AmeriCold Portfolio Intercreditor Agreement": The Intercreditor
Agreement, by and among the holders of the AmeriCold Portfolio Notes, relating
to the relative rights of such holders of the AmeriCold Portfolio Whole Loan, as
the same may be further amended in accordance with the terms thereof.
"AmeriCold Portfolio Master Servicer": The master servicer under the
2007-CIBC18 Pooling Agreement, which as of the date hereof is Capmark Finance
Inc.
"AmeriCold Portfolio Mortgage Loan": With respect to the AmeriCold
Portfolio Whole Loan, the Mortgage Loan that is included in the Trust
(identified as Mortgage Loan No. 16 on the Mortgage Loan Schedule), which is
designated as promissory note A-2C and is pari passu in right of payment with
the AmeriCold Portfolio Companion Loans to the extent set forth in the AmeriCold
Portfolio Whole Loan documents and as provided in the AmeriCold Portfolio
Intercreditor Agreement.
"AmeriCold Portfolio Mortgaged Property": The Mortgaged Property
that secures the AmeriCold Portfolio Whole Loan.
"AmeriCold Portfolio Notes": The AmeriCold Portfolio Mortgage Loan
and the AmeriCold Portfolio Companion Loans.
"AmeriCold Portfolio Primary Servicer": Midland Loan Services, Inc.,
a Delaware corporation, and its successors in interest and assigns, or any
successor appointed as provided in the 2007-CIBC18 Pooling Agreement.
"AmeriCold Portfolio Special Servicer": The "Special Servicer" under
the 2007-CIBC18 Pooling Agreement, which as of the date hereof is LNR Partners,
Inc.
"AmeriCold Portfolio Trust": The X.X. Xxxxxx Chase Commercial
Mortgage Securities Trust 2007-CIBC18, which is administered pursuant to the
2007-CIBC18 Pooling Agreement.
"AmeriCold Portfolio Trustee": The "Trustee" under the 2007-CIBC18
Pooling Agreement, which as of the date hereof is Xxxxx Fargo Bank, N.A.
"AmeriCold Portfolio Whole Loan": The AmeriCold Portfolio Mortgage
Loan, together with the AmeriCold Portfolio Companion Loans each of which is
secured by the same mortgage on the AmeriCold Portfolio Mortgaged Property.
References herein to the AmeriCold Portfolio Whole Loan shall be construed to
refer to the aggregate indebtedness under the AmeriCold Portfolio Notes.
"Applicable Procedures": As defined in Section 5.02(b)(i).
"Applicable State and Local Tax Law": For purposes hereof, the
Applicable State and Local Tax Law shall be (a) the tax laws of the State of New
York and the State of Illinois; and (b) such other state or local tax laws whose
applicability shall have been brought to the attention of the Trustee and the
Paying Agent by either (i) an Opinion of Counsel delivered to it, or (ii)
written notice from the appropriate taxing authority as to the applicability of
such state or local tax laws.
"Appraisal": An appraisal prepared by an Independent MAI appraiser
with at least five years experience in properties of like kind and in the same
area, prepared in accordance with 12 C.F.R. 225.64, or, in connection with an
Appraisal Reduction, a valuation meeting the requirements of clause (b)(i)(A)(2)
in the definition of Appraisal Reduction.
"Appraisal Reduction": For any Distribution Date and for any
Mortgage Loan (other than the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the
AmeriCold Portfolio Mortgage Loan) or Companion Loan as to which an Appraisal
Reduction Event has occurred, will be an amount, calculated by the Special
Servicer (which calculation may be relied upon by the applicable Master Servicer
as of 1 day prior to the related Determination Date), as of the first
Determination Date that is at least 10 Business Days following the date on which
the Special Servicer receives an Appraisal or conducts a valuation described
below, equal to the excess of (a) the Stated Principal Balance of such Mortgage
Loan and any related Companion Loan 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) 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) with an outstanding principal balance less than
$2,000,000, minus, with respect to any Appraisals, such downward adjustments as
the Special Servicer may make (without implying any obligation to do so) based
upon its review of the Appraisal and any other information it deems relevant and
(B) all escrows, letters of credit and reserves in respect of such Mortgage Loan
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 Trustee, all unpaid interest
due on such Mortgage Loan at a per annum rate equal to its Mortgage Rate (and
any accrued and unpaid interest on any related Companion Loan), (B) all
unreimbursed Advances and any Advances that were not reimbursed out of
collections on such Mortgage Loan or the related Companion Loan and interest
thereon at the Reimbursement Rate in respect of such Mortgage Loan or Companion
Loan and (C) all currently due and unpaid real estate taxes, assessments,
insurance premiums, ground rents, unpaid Special Servicing Fees and all other
amounts due and unpaid with respect to such Mortgage Loan or Companion Loan
(which taxes, premiums, ground rents and other amounts have not been the subject
of an Advance by the applicable Master Servicer or the Trustee, as applicable);
provided, however, without limiting the Special Servicer's obligation to order
and obtain such Appraisal or perform such valuation, if the Special Servicer has
not obtained the Appraisal or performed such valuation, as applicable, referred
to above within 60 days of the Appraisal Reduction Event (or with respect to the
Appraisal Reduction Events set forth in clauses (i) and (vi) of the definition
of Appraisal Reduction Event, within 120 days or 90 days, respectively, after
the initial delinquency for the related Appraisal Reduction Event), the amount
of the Appraisal Reduction shall be deemed to be an amount equal to 25% of the
current Stated Principal Balance of the related Mortgage Loan (or AB Mortgage
Loan and its related Companion Loan in the case of an AB Mortgage 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
Paying Agent and the Trustee.
With respect to each Mortgage Loan (other than the 000 Xxxxxxxxx
Xxxxxx Mortgage Loan and the AmeriCold Portfolio Mortgage Loan) as to which an
Appraisal Reduction has occurred (unless such Mortgage Loan has become a
Corrected Mortgage Loan (for such purposes taking into account any amendment or
modification of such Mortgage 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 and to the
extent it would be a Nonrecoverable Advance, a Trust expense, or conduct an
internal valuation, as applicable and, promptly following receipt of any such
Appraisal or performance of such valuation, shall deliver a copy thereof to the
applicable Master Servicer, the Directing Certificateholder, the Paying Agent
and the Trustee. Based upon such Appraisal or internal valuation of the Special
Servicer, the Special Servicer shall redetermine (in consultation with the
Directing Certificateholder) and report to the Directing Certificateholder, the
applicable Master Servicer, the Paying Agent and the Trustee the amount and
calculation of the Appraisal Reduction with respect to such Mortgage Loan and
Companion Loan, as applicable, and such redetermined Appraisal Reduction shall
replace the prior Appraisal Reduction with respect to such Mortgage Loan and
Companion Loan, as applicable. The Directing Certificateholder shall have ten
(10) Business Days to review each calculation of an Appraisal Reduction;
provided, however, that if the Directing Certificateholder fails to approve or
disapprove any calculation of the Appraisal Reduction within ten (10) Business
Days of receipt of the Appraisal Reduction, such consent shall be deemed given.
Notwithstanding the foregoing, the Special Servicer will not be required to
obtain an Appraisal or conduct an internal valuation, as applicable, with
respect to a Mortgage Loan as to which an Appraisal Reduction Event has occurred
to the extent the Special Servicer has obtained an Appraisal or conducted such a
valuation (in accordance with requirements of this Agreement), as applicable,
with respect to the related Mortgaged Property within the twelve-month period
immediately prior to the occurrence of such Appraisal Reduction Event. Instead,
the Special Servicer may use such prior Appraisal or valuation, as applicable,
in calculating any Appraisal Reduction with respect to such Mortgage Loan;
provided that the Special Servicer is not aware of any material change to the
related Mortgaged Property having occurred and affecting the validity of such
Appraisal or valuation, as applicable.
Any Appraisal Reduction in respect of the 000 Xxxxxxxxx Xxxxxx Whole
Loan shall be calculated by the 000 Xxxxxxxxx Xxxxxx Master Servicer in
accordance with and pursuant to the terms of the 0000-XXX00 Xxxxxxx Agreement.
Any Appraisal Reduction in respect of the AmeriCold Portfolio Whole Loan shall
be calculated by the AmeriCold Portfolio Master Servicer or the AmeriCold
Portfolio Primary Servicer in accordance with and pursuant to the terms of the
2007-CIBC18 Pooling Agreement. Any Mortgage Loan previously subject to an
Appraisal Reduction which Mortgage Loan has become a Corrected Mortgage Loan
(for such purposes taking into account any amendment or modification of such
Mortgage Loan), and with respect to which no other Appraisal Reduction Event has
occurred and is continuing, will no longer be subject to an Appraisal Reduction.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Mortgage Loan or the related REO Property will
be reduced to zero as of the date on which such Mortgage Loan is paid in full,
liquidated, repurchased or otherwise removed from the Trust Fund.
"Appraisal Reduction Event": With respect to any Mortgage Loan
(other than the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the AmeriCold Portfolio
Mortgage Loan) or Companion Loan, the earliest of (i) 120 days after an uncured
delinquency (without regard to the application of any grace period) occurs in
respect of such Mortgage Loan or Companion Loan, as applicable, (ii) the date on
which a reduction in the amount of Monthly Payments on such Mortgage Loan or
Companion Loan, as applicable, or a change in any other material economic term
of such Mortgage Loan or Companion Loan, as applicable (other than an extension
of the Maturity Date), becomes effective as a result of a modification of such
Mortgage Loan or Companion Loan, as applicable, by the Special Servicer, (iii)
the date on which a receiver has been appointed, (iv) 60 days after a Mortgagor
declares bankruptcy, (v) 60 days after the date on which an involuntary petition
of bankruptcy is filed with respect to a Mortgagor if not dismissed within such
time, (vi) 90 days after an uncured delinquency occurs in respect of a Balloon
Payment with respect to such Mortgage Loan or Companion Loan, as applicable,
except where a refinancing is anticipated within 120 days after the Maturity
Date of the Mortgage Loan or Companion Loan, as applicable, in which case 120
days after such uncured delinquency, and (vii) immediately after such Mortgage
Loan or Companion Loan, as applicable, becomes an REO Loan; provided, however,
that an Appraisal Reduction Event shall not occur at any time when the aggregate
Certificate Balances of all Classes of Certificates (other than the Class A
Certificates) have been reduced to zero. The Special Servicer shall notify the
applicable Master Servicer, or the applicable Master Servicer shall notify the
Special Servicer, as applicable, promptly upon such Person having notice or
knowledge of the occurrence of any of the foregoing events.
"Appraised Value": With respect to any Mortgaged Property (other
than the 000 Xxxxxxxxx Xxxxxx Mortgaged Property and the AmeriCold Portfolio
Mortgaged Property), the appraised value thereof as determined by an Appraisal
of the Mortgaged Property securing the related Mortgage Loan and with respect to
the 000 Xxxxxxxxx Xxxxxx Mortgaged Property or the AmeriCold Portfolio Mortgaged
Property, the appraised value allocable thereto, as determined pursuant to the
0000-XXX00 Xxxxxxx Agreement or the 2007-CIBC18 Pooling Agreement, respectively.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment": As defined in Section 2.01(c).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar instrument executed by the
Mortgagor, assigning to the mortgagee all of the income, rents and profits
derived from the ownership, operation, leasing or disposition of all or a
portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect to
any Mortgage Loan that is delinquent in respect of its Balloon Payment
(including any REO Loan as to which the Balloon Payment would have been past
due), an amount equal to the sum of (a) the principal portion of the Monthly
Payment that would have been due on such Mortgage Loan on the related Due Date
based on the constant payment required by the related Mortgage Note or the
original amortization schedule thereof (as calculated with interest at the
related Mortgage Rate), if applicable, assuming such Balloon Payment has not
become due, after giving effect to any reduction in the principal balance
thereof occurring in connection with a modification of such Mortgage Loan in
connection with a default or bankruptcy or similar proceedings, and (b) interest
on the Stated Principal Balance of such Mortgage Loan at the applicable Mortgage
Rate (net of interest at the Servicing Fee Rate).
"Authenticating Agent": The Paying Agent or any agent of the Trustee
appointed to act as Authenticating Agent pursuant to Section 5.01.
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to the sum of (without duplication):
(a) the aggregate amount relating to the Mortgage Loans (and in the
case of the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the AmeriCold Portfolio
Mortgage Loan, only to the extent received by the Trust pursuant to the
000 Xxxxxxxxx Xxxxxx Intercreditor Agreement and the AmeriCold Portfolio
Intercreditor Agreement, respectively) 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 as of the close of business on the
related P&I Advance Date, exclusive of (without duplication):
(i) all Monthly Payments paid by the Mortgagors that are due
on a Due Date following the end of the related Due Period, excluding
interest related to payments prior to, but due after, the Cut-off
Date;
(ii) all unscheduled Principal Prepayments (together with any
related payments of interest allocable to the period following the
related Due Date for the related Mortgage Loan), Liquidation
Proceeds or Insurance and Condemnation Proceeds, in each case,
received subsequent to the related Determination Date (or, with
respect to voluntary Principal Prepayments for each Mortgage Loan
with a Due Date occurring after the related Determination Date, the
related Due Date);
(iii) all amounts payable or reimbursable to any Person from
the Certificate Account pursuant to clauses (ii) through (xvii),
inclusive, and clauses (xix) and (xx) of Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person from
the Lower-Tier Distribution Account pursuant to clauses (ii) through
(vii), inclusive, of Section 3.05(b);
(v) [Reserved];
(vi) all Yield Maintenance Charges;
(vii) all amounts deposited in 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 each case, unless the related
Distribution Date is the final Distribution Date), an amount equal
to one day of interest on the Stated Principal Balance of such
Mortgage Loan as of the Due Date in the month preceding the month in
which such Distribution Date occurs at the related Mortgage Rate to
the extent such amounts are Withheld Amounts;
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred from the REO Account to 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 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 related Distribution Date is the final Distribution Date), the
Withheld Amounts remitted to the Lower-Tier Distribution Account pursuant
to Section 3.25(b); and
(e) with respect to the first Distribution Date, the Closing Date
Deposit Amount deposited into the Distribution Account pursuant to Section
2.01(g).
Notwithstanding the investment of funds held in each Certificate Account
pursuant to Section 3.06, for purposes of calculating the Available Distribution
Amount, the amounts so invested shall be deemed to remain on deposit in such
account.
"Balloon Mortgage Loan": Any Mortgage Loan or Companion Loan that by
its original terms or by virtue of any modification entered into as of the
Closing Date provides for an amortization schedule extending beyond its Maturity
Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Maturity Date of
such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal Prepayment
on any Mortgage Loan and with respect to any Class A-1, Class A-2, Class X-0,
Xxxxx X-0, Class A-SB, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class
D, Class E, Class F, Class G, Class H and Class J Certificate, 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 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 Paying Agent 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, Chicago, Illinois, Miami
Beach, Florida, Pittsburgh, Pennsylvania, San Francisco, California or the city
and state in which the Corporate Trust Office of the Trustee, or the principal
place of business or principal commercial mortgage loan servicing office of any
Master Servicer, the Paying Agent or the Special Servicer is located, are
authorized or obligated by law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19, 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 "Capmark Finance Inc., as Master Servicer No. 1, on behalf of LaSalle
Bank National Association, as Trustee, in trust for the registered holders of
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-CIBC19, Commercial
Mortgage Pass-Through Certificates, Series 2007-CIBC19, Certificate Account" and
"Xxxxx Fargo Bank, N.A., as Master Servicer No. 2, on behalf of LaSalle Bank
National Association, as Trustee, in trust for the registered holders of X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-CIBC19, Commercial
Mortgage Pass-Through Certificates, Series 2007-CIBC19, Certificate Account."
Any such account or accounts shall be an Eligible Account. Subject to the
related Intercreditor Agreement and taking into account that each Companion Loan
is subordinate or pari passu, as applicable, to the related AB Mortgage Loan to
the extent set forth in the related Intercreditor Agreement, the subaccount
described in the second paragraph of Section 3.04(b) that is part of 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 or
Lower-Tier REMIC formed hereunder.
"Certificate Balance": With respect to any Class of Certificates
(other than the Residual Certificates and the Class X Certificates), (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 on the Distribution
Date immediately prior to such date of determination (determined as adjusted
pursuant to Section 1.02(iii)).
"Certificate Deferred Interest": For any Distribution Date with
respect to any Class of Certificates (other than the Class X and Class R
Certificates), the amount of Mortgage Deferred Interest allocated to such Class
of Certificates 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 Paying Agent, the Depositor, or
any Mortgage Loan Seller or any Affiliate thereof shall be deemed not to be
outstanding, and the Voting Rights to which it is entitled shall not be taken
into account in determining whether the requisite percentage of Voting Rights
necessary to effect any such consent, approval or waiver has been obtained, if
such consent, approval or waiver sought from such party would in any way
increase its compensation or limit its obligations as a Master Servicer, Special
Servicer, Depositor or Trustee, as applicable, hereunder; provided, however, so
long as there is no Event of Default with respect to the applicable Master
Servicer or the Special Servicer, the applicable Master Servicer and the Special
Servicer or such Affiliate of either shall be entitled to exercise such Voting
Rights with respect to any issue which could reasonably be believed to adversely
affect such party's compensation or increase its obligations or liabilities
hereunder; and provided, further, however, that such restrictions shall not
apply to the exercise of the Special Servicer's rights (or the applicable Master
Servicer's or any Mortgage Loan Seller's rights, if any) or any of their
Affiliates as a member of the Controlling Class. The Trustee and the Paying
Agent shall each be entitled to request and rely upon a certificate of the
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, Class
A-3, Class A-4 and Class A-SB Certificate.
"Class A-1 Certificate": A Certificate designated as "Class A-1" on
the face thereof, in the form of Exhibit A-1 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1 Pass-Through Rate": With respect to any Distribution
Date, a fixed per annum rate equal to 5.5380%.
"Class A-1A Certificate": A Certificate designated as "Class A-1A"
on the face thereof, in the form of Exhibit A-6 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1A Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class A-2 Certificate": A Certificate designated as "Class A-2" on
the face thereof, in the form of Exhibit A-2 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-2 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the lesser of (i) 5.8150% and (ii) the Weighted
Average Net Mortgage Rate.
"Class A-3 Certificate": A Certificate designated as "Class A-3" on
the face thereof, in the form of Exhibit A-3 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-3 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class A-4 Certificate": A Certificate designated as "Class A-4" on
the face thereof, in the form of Exhibit A-4 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-4 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class A-J Certificate": A Certificate designated as "Class A-J" on
the face thereof, in the form of Exhibit A-9 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-J Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class A-M Certificate": A Certificate designated as "Class A-M" on
the face thereof, in the form of Exhibit A-8 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-M Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class A-SB Certificate": A Certificate designated as "Class A-SB"
on the face thereof, in the form of Exhibit A-5 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-SB Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate minus
0.0170%.
"Class A-SB Planned Principal Balance": With respect to any
Distribution Date, the planned principle amount for such Distribution Date
specified in Schedule 3 hereto relating to the Class A-SB Certificates.
"Class B Certificate": A Certificate designated as "Class B" on the
face thereof, in the form of Exhibit A-10 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class B Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class C Certificate": A Certificate designated as "Class C" on the
face thereof, in the form of Exhibit A-11 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class C Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class D Certificate": A Certificate designated as "Class D" on the
face thereof, in the form of Exhibit A-12 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class D Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class E Certificate": A Certificate designated as "Class E" on the
face thereof, in the form of Exhibit A-13 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class E Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class F Certificate": A Certificate designated as "Class F" on the
face thereof, in the form of Exhibit A-14 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class F Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class G Certificate": A Certificate designated as "Class G" on the
face thereof, in the form of Exhibit A-15 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class G Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class H Certificate": A Certificate designated as "Class H" on the
face thereof, in the form of Exhibit A-16 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class H Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class J Certificate": A Certificate designated as "Class J" on the
face thereof, in the form of Exhibit A-17 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class J Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class K Certificate": A Certificate designated as "Class K" on the
face thereof, in the form of Exhibit A-18 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class K Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 5.4700% and (ii) the Weighted
Average Net Mortgage Rate.
"Class L Certificate": A Certificate designated as "Class L" on the
face thereof, in the form of Exhibit A-19 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 per annum rate equal to the lesser of (i) 5.4700% and (ii) the Weighted
Average Net Mortgage Rate.
"Class LA-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-J Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-M Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LB Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LC Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LD Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LE Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LF Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LG Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LH Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LJ Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LK Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LL Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LM Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LN Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LNR Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LP Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LQ Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LR Certificate": A Certificate designated as "Class LR" on
the face thereof, in the form of Exhibit A-26 hereto, evidencing the sole class
of "residual interests" in the Lower-Tier REMIC for purposes of the REMIC
Provisions.
"Class M Certificate": A Certificate designated as "Class M" 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 M Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 5.4700% and (ii) the Weighted
Average Net Mortgage Rate.
"Class N Certificate": A Certificate designated as "Class N" 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 N Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 5.4700% and (ii) the Weighted
Average Net Mortgage Rate.
"Class NR Certificate": A Certificate designated as "Class NR" 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 NR Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 5.4700% and (ii) the Weighted
Average Net Mortgage Rate.
"Class P Certificate": A Certificate designated as "Class P" 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 P Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 5.4700% and (ii) the Weighted
Average Net Mortgage Rate.
"Class Q Certificate": A Certificate designated as "Class Q" 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 Q Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 5.4700% and (ii) the Weighted
Average Net Mortgage Rate.
"Class R Certificate": A Certificate designated as "Class R" on the
face thereof in the form of Exhibit A-25 hereto, and evidencing the sole class
of "residual interest" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class Unpaid Interest Shortfall": As to any Distribution Date and
any Class of Certificates, the excess, if any, of (a) the sum of (i) the
Distributable Certificate Interest in respect of such Class of Certificates for
the immediately preceding Distribution Date and (ii) any outstanding Class
Unpaid Interest Shortfall payable to such Class of Certificates on such
preceding Distribution Date over (b) the aggregate amount in respect of interest
actually distributed to such Class of Certificates on such immediately preceding
Distribution Date. The Class Unpaid Interest Shortfall with respect to any Class
of Certificates 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-7
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 Class X Strip Rates for the respective Components
for such Distribution Date (weighted on the basis of the respective Component
Notional Amounts of such Components outstanding immediately prior to such
Distribution Date).
"Class X Strip Rate": With respect to any Class of the Components
for any Distribution Date, a rate per annum equal to (i) the Weighted Average
Net Mortgage Rate for such Distribution Date, minus (ii) the Pass-Through Rate
for the Related Certificates.
"Clearstream": Clearstream Banking, societe anonyme or any successor
thereto.
"Closing Date": June 14, 2007.
"Closing Date Deposit Amount": $0.00 representing the aggregate
amount of interest that would have accrued on the related Stated Principal
Balance at the related Mortgage Rates during the Due Period ending in July 2007,
for those Mortgage Loans that do not have their first Monthly Payment due until
August 2007.
"CMSA": The Commercial Mortgage Securities Association, or any
successor organization reasonably acceptable to the Trustee, the Paying Agent,
the Master Servicers, the Special Servicer and the Directing Certificateholder.
"CMSA Advance Recovery Report": The report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Advance Recovery Report" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally as is reasonably
acceptable to the 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 Paying Agent.
"CMSA Collateral Summary File": The data file in the "CMSA
Collateral Summary File" format substantially in the form of and containing the
information called for therein, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Collateral Summary File" available as of the Closing Date on the CMSA
website, as is reasonably acceptable to the Paying Agent, the Trustee, the
Master Servicers and the Special Servicer.
"CMSA Comparative Financial Status Report": The monthly report in
"Comparative Financial Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "Comparative Financial Status Report" available as
of the Closing Date on the CMSA website, is reasonably acceptable to the Master
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)": The collection of reports
specified by the CMSA from time to time as the "CMSA Investor Reporting
Package." As of the Closing Date, the CMSA IRP contains seven electronic files
((1) CMSA Loan Set up File, (2) CMSA Loan Periodic Update File, (3) CMSA
Property File, (4) CMSA Bond Level File, (5) CMSA Collateral Summary File, (6)
CMSA Financial File and (7) CMSA Special Servicer Loan File) and ten
surveillance reports ((1) CMSA Servicer Watch List, (2) CMSA Delinquent Loan
Status Report, (3) CMSA REO Status Report, (4) CMSA Comparative Financial Status
Report, (5) CMSA Historical Loan Modification and Corrected Mortgage Loan
Report, (6) CMSA Operating Statement Analysis Report, (7) CMSA NOI Adjustment
Worksheet, (8) CMSA Loan Level Reserve/LOC Report, (9) CMSA Reconciliation of
Funds Report) and (10) in connection with Mortgage Loans that have Companion
Loans, the CMSA Total Loan Report. In addition, the CMSA Investor Reporting
Package shall include the CMSA Advance Recovery Report and the CMSA Realized
Loss Report. The CMSA IRP shall be substantially in the form of, and containing
the information called for in, the downloadable forms of the "CMSA IRP"
available as of the Closing Date on the CMSA website, or such other form for the
presentation of such information and containing such additional information or
reports as may from time to time be approved by the CMSA for commercial mortgage
backed securities transaction generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA IRP" available as of the Closing Date on the CMSA website, as is
reasonably acceptable to the Master Servicers, the Special Servicer, the Trustee
and the Paying Agent. For the purposes of the production of the CMSA Comparative
Financial Status Report by any Master Servicer or the Special Servicer of any
such report that is required to state information for any period prior to the
Cut-off Date, 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,
the Paying Agent and the Trustee.
"CMSA Loan Setup File": The data file in the "CMSA Loan Setup File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Loan Setup File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicers and the Paying Agent.
"CMSA NOI Adjustment Worksheet": The worksheet in the "NOI
Adjustment Worksheet" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA NOI Adjustment Worksheet" available as of the Closing Date
on the CMSA website, is reasonably acceptable to the 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 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 and Portfolio Review Guidelines": As of
each Determination Date a report, including and identifying each Non-Specially
Serviced Mortgage Loan satisfying the "CMSA Portfolio Review Guidelines"
approved from time to time by the CMSA in the "CSMA Servicer Watch List" format
substantially in the form of and containing the information called for therein
for the Mortgage Loans, or such other form (including other portfolio review
guidelines) for the presentation of such information as may be approved from
time to time by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Servicer Watch List"
available as of the Closing Date on the CMSA website, is reasonably acceptable
to the 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.
"Commission": The Securities and Exchange Commission.
"Companion Distribution Account": With respect to each Companion
Loan (other than the 000 Xxxxxxxxx Xxxxxx Companion Loans and the AmeriCold
Portfolio Companion Loans), the separate account 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 "Capmark Finance 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-CIBC19, Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC19"
or "Xxxxx Fargo Bank, N.A., as Companion Paying Agent for the Companion Holders
of the Companion Loans, relating to the X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Trust 2007-CIBC19, Commercial Mortgage Pass-Through Certificates,
Series 2007-CIBC19", as applicable. The Companion Distribution Account shall not
be an asset of the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC, but
instead shall be held by the 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 record of the Companion
Loans.
"Companion Loan": As defined in the Preliminary Statement.
"Companion Paying Agent": With respect to the Companion Loans, the
applicable Master Servicer in its role as Companion Paying Agent appointed
pursuant to Section 3.30.
"Companion Register": The register maintained by the Companion
Paying Agent pursuant to Section 3.31.
"Compensating Interest Payments": With respect to each Mortgage Loan
(or REO Loan), an amount as of any Distribution Date equal to the lesser of (i)
the aggregate amount of Prepayment Interest Shortfalls incurred in connection
with voluntary principal prepayments received in respect of the Mortgage Loans
for the related Distribution Date (other than a Specially Serviced Mortgage Loan
or a Mortgage Loan on which the Special Servicer allowed a prepayment on a date
other than the applicable Due Date) and (ii) the aggregate of (A) that portion
of the 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% per
annum, and (B) all Prepayment Interest Excesses received in respect of the
Mortgage Loans for the related Distribution Date and (C) to the extent earned
solely on principal prepayments, Net Investment Earnings received by the
applicable Master Servicer during such Due Period with respect to the Mortgage
Loans and related Companion Loan related to such Prepayment Interest Shortfalls.
However, if a Prepayment Interest Shortfall occurs as a result of the 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, (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 XX-0, Xxxxxxxxx XX-0X, Xxxxxxxxx
XX-0, Component XA-3, Component XA-4, Component XA-SB, Component XA-J, Component
XA-M, Component XB, Component XC, Component XD, Component XE, Component XF,
Component XG, Component XH, Component XJ, Component XK, Component XL, Component
XM, Component XN, Component XP, Component XQ and Component XNR.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then Lower-Tier Principal Amount
of its Related Uncertificated Lower-Tier Interest.
"Component XA-1": One of the 23 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1 Uncertificated Interest as of any
date of determination.
"Component XA-1A": One of the 23 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1A Uncertificated Interest as of any
date of determination.
"Component XA-2": One of the 23 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-2 Uncertificated Interest as of any
date of determination.
"Component XA-3": One of the 23 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-3 Uncertificated Interest as of any
date of determination.
"Component XA-4": One of the 23 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-4 Uncertificated Interest as of any
date of determination.
"Component XA-SB": One of the 23 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-SB Uncertificated Interest as of any
date of determination.
"Component XA-J": One of the 23 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-J Uncertificated Interest as of any
date of determination.
"Component XA-M": One of the 23 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-M Uncertificated Interest as of any
date of determination.
"Component XB": One of the 23 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LB Uncertificated Interest as of any date of
determination.
"Component XC": One of the 23 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LC Uncertificated Interest as of any date of
determination.
"Component XD": One of the 23 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LD Uncertificated Interest as of any date of
determination.
"Component XE": One of the 23 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LE Uncertificated Interest as of any date of
determination.
"Component XF": One of the 23 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LF Uncertificated Interest as of any date of
determination.
"Component XG": One of the 23 components of the Class X Certificates
having a Component Notional Amount equal to the current Lower-Tier Principal
Amount of the Class LG Uncertificated Interest as of any date of determination.
"Component XH": One of the 23 components of the Class X Certificates
having a Component Notional Amount equal to the current Lower-Tier Principal
Amount of the Class LH Uncertificated Interest as of any date of determination.
"Component XJ": One of the 23 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LJ Uncertificated Interest as of any date of
determination.
"Component XK": One of the 23 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LK Uncertificated Interest as of any date of
determination.
"Component XL": One of the 23 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LL Uncertificated Interest as of any date of
determination.
"Component XM": One of the 23 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LM Uncertificated Interest as of any date of
determination.
"Component XN": One of the 23 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LN Uncertificated Interest as of any date of
determination.
"Component XNR": One of the 23 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LNR Uncertificated Interest as of any
date of determination.
"Component XP": One of the 23 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LP Uncertificated Interest as of any date of
determination.
"Component XQ": One of the 23 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LQ Uncertificated Interest as of any date of
determination.
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates (other than the Class X Certificates)
then outstanding that has a then aggregate Certificate Balance at least equal to
25% of the Original Certificate Balance of such Class of Certificates. As of the
Closing Date, the Controlling Class will be the Class NR Certificates. In
determining the most subordinate Class of Regular Certificates for the purpose
of determining the Controlling Class, such determination shall be made without
consideration of Appraisal Reductions, if any, allocated to any Class of Regular
Certificates.
"Controlling Class Certificateholder's Option Period": As defined in
Section 3.18(a)(ii).
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified by
the Certificate Registrar to the Trustee from time to time by such Holder (or
Certificate Owner).
"Controlling Class Option Holder": As defined in Section 3.18(a)(i).
"Corporate Trust Office": The corporate trust office of the Trustee
and the Paying Agent at which at any particular time its corporate trust
business with respect to this Agreement shall be administered, which office at
the date of the execution of this Agreement is located at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and
Trust Services, X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2007-CIBC19.
"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).
"Crossed Group": With respect to any Mortgage Loan, such Mortgage
Loan and all other Mortgage Loans that are cross-collateralized and
cross-defaulted with such Mortgage Loan.
"Crossed Loan": A Mortgage Loan that is cross-collateralized and
cross-defaulted with one or more other Mortgage Loans.
"Crossed Loan Repurchase Criteria": (i) The weighted average Debt
Service Coverage Ratio for all remaining related Crossed Loans for the four most
recent calendar quarters preceding the repurchase or substitution shall not be
less than the greater of (a) the weighted average Debt Service Coverage Ratio
for all such related Crossed Loans, including the affected Crossed Loan, for the
four most recent calendar quarters preceding the repurchase or substitution, and
(b) 1.25x, (ii) the weighted average LTV Ratio for all remaining related Crossed
Loans determined at the time of repurchase or substitution based upon an
Appraisal obtained by the Special Servicer at the expense of the related
Mortgage Loan Seller shall not be greater than the lesser of (a) the weighted
average LTV Ratio for all such related Crossed Loans, including the affected
Crossed Loan, determined as of the Cut-off Date based upon an Appraisal obtained
by the Special Servicer at the expense of the related Mortgage Loan Seller and
(b) 75%, (iii) the Mortgage Loan Seller, at its expense, shall have furnished
the Trustee with an Opinion of Counsel that any modification relating to the
repurchase or substitution of a Crossed Loan shall not cause an Adverse REMIC
Event, (iv) the related Mortgage Loan Seller causes the affected Crossed Loan to
become not cross-collateralized and cross-defaulted with the remaining related
Crossed Loans prior to such repurchase or substitution or otherwise forbears
from exercising enforcement rights against the Primary Collateral of any Crossed
Loan remaining in the Trust Fund and (v) the Directing Certificateholder shall
have consented to the repurchase or substitution of the affected Crossed Loan,
which consent shall not be unreasonably withheld.
"Cumberland Tech 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 Cumberland Tech Center AB
Mortgage Loan.
"Cumberland Tech Center AB Mortgage Loan": That certain Mortgage
Loan identified on the Mortgage Loan Schedule as Mortgage Loan No. 87.
"Cumberland Tech Center Intercreditor Agreement": That certain
Intercreditor Agreement Among Note Holders, dated as of April 11, 2007, by and
between CIBC Inc., as the A Note Holder, and Mezz Cap Finance, LLC, as the B
Note Holder. The Cumberland Tech Center Intercreditor Agreement relates to the
Cumberland Tech Center AB Mortgage Loan.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, either of the Mortgage Loan Sellers or an
Affiliate of any of them. The Trustee shall be the initial Custodian.
"Cut-off Date": With respect to each Mortgage Loan, the related Due
Date of the Mortgage Loan in June 2007, or, with respect to those Mortgage Loans
that were originated in May 2007 and have their first Due Date in July 2007,
June 1, 2007.
"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(k).
"Defect": As defined in Section 2.02(f).
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": Any Certificate in definitive, fully
registered form without interest coupons.
"Denomination": As defined in Section 5.01(a).
"Depositor": X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
a Delaware corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
fourth Business Day preceding such Distribution Date.
"Determination Information": As defined in Section 3.18(a)(i).
"Directing Certificateholder": The initial Directing
Certificateholder shall be CRES Investment NO. I, LP. Thereafter, the Directing
Certificateholder shall be the Controlling Class Certificateholder (or a
representative thereof) identified to the Master Servicers, the Special
Servicer, and the Trustee and the Paying Agent selected by more than 50% of the
Controlling Class Certificateholders, by Certificate Balance, as certified by
the Certificate Registrar from time to time; provided, however, that (i) absent
such selection, or (ii) until a Directing Certificateholder is so selected or
(iii) upon receipt of a notice from a majority of the Controlling Class
Certificateholders, by Certificate Balance, that a Directing Certificateholder
is no longer designated, the Controlling Class Certificateholder that owns the
largest aggregate Certificate Balance of the Controlling Class will be the
Directing Certificateholder; provided, further, however, that the Controlling
Class Certificateholder selected to serve as the Directing Certificateholder may
appoint an entity to act on its behalf as the Directing Certificateholder.
"Directly Operate": With respect to any REO Property (except with
respect to the 000 Xxxxxxxxx Xxxxxx Mortgaged Property and the AmeriCold
Portfolio Mortgaged Property), the furnishing or rendering of services to the
tenants thereof, that are not customarily provided to tenants in connection with
the rental of space "for occupancy only" within the meaning of Treasury
Regulations Section 1.512(b)-1(c)(5), the management or operation of such REO
Property, the holding of such REO Property primarily for sale to customers, the
use of such REO Property in a trade or business conducted by the Trust Fund or
on behalf of a Companion Holder or the performance of any construction work on
the REO Property (other than the completion of a building or improvement, where
more than 10% of the construction of such building or improvement was completed
before default became imminent), other than through an Independent Contractor;
provided, however, that an REO Property shall not be considered to be Directly
Operated solely because the Trustee (or the Special Servicer on behalf of the
Trustee) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance or makes decisions as to repairs or
capital expenditures with respect to such REO Property or takes other actions
consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any possession of the United States or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and a
majority of its board of directors is not selected by such governmental unit),
(ii) a foreign government, any international organization or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Trustee based upon an Opinion
of Counsel as provided to the Trustee (at no expense to the Trustee) that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC
or any Person having an Ownership Interest in any Class of Certificates (other
than such Person) to incur a liability for any federal tax imposed under the
Code that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms "United States,"
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any
Distribution Date, as to any Class of Regular Certificates, the Accrued
Certificate Interest in respect of such Class of Regular Certificates 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) 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 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 X Certificates) for such Distribution Date,
and (ii) any Certificate Deferred Interest for such Distribution Date allocated
to such Class of Certificates pursuant to Section 4.06(a).
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account, the Lower-Tier Distribution Account, all of which may be subaccounts of
a single Eligible Account.
"Distribution Date": The 12th day of each month, or, if such 12th
day is not a Business Day, on the next succeeding Business Day, beginning in
July 2007.
"DTC": As defined in Section 5.03(d).
"Due Date": With respect to (i) any Mortgage Loan or Companion Loan,
on or prior to its Maturity Date, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment thereon is scheduled to be first
due, (ii) any Mortgage Loan or Companion Loan after the Maturity Date therefor,
the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on such Mortgage Loan or Companion Loan had been scheduled to be
first due, and (iii) any REO Loan, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on the related Mortgage Loan or
Companion Loan had been scheduled to be first due.
"Due Period": With respect to any Distribution Date and any Mortgage
Loan or Companion Loan, the period commencing on the day immediately succeeding
the Due Date for such Mortgage Loan or Companion Loan occurring in the month
preceding the month in which such Distribution Date occurs or the date that
would have been the Due Date if the Mortgage Loan had a Due Date in July 2007
and ending on and including the Due Date for such Mortgage Loan or Companion
Loan occurring in the month in which such Distribution Date occurs.
Notwithstanding the foregoing, in the event that the last day of a Due Period
(or applicable grace period) is not a Business Day, any Monthly Payments
received with respect to the Mortgage Loans or Companion Loan relating to such
Due Period on the Business Day immediately following such day shall be deemed to
have been received during such Due Period and not during any other Due Period.
"Eligible Account": Either (i) a segregated account or accounts
maintained with a federal or state chartered depository institution or trust
company (including the Trustee), (A) the long-term unsecured debt obligations of
which are rated at least "A+" by S&P, if the deposits are to be held in such
account for 30 days or more, and the short-term debt obligations of which have a
short-term rating of not less than "A-1" by S&P, if the deposits are to be held
in such account for less than 30 days, (B) the long-term unsecured debt
obligations of which are rated at least "Aa3" by Moody's, if the deposits are to
be held in such account for 30 days or more, and the short-term debt obligations
of which have a short-term rating of not less than "P-1" from Moody's, if the
deposits are to be held in such account for less than 30 days, (C) the long term
unsecured debt obligations of which are rated at least "AA-" by Fitch, if the
deposits are to be held in such account for 30 days or more, and the short-term
debt obligations of which have a short-term rating of not less than "F-1" from
Fitch, if the deposits are to be held in such account for less than 30 days, (D)
an account or accounts maintained with PNC Bank, National Association so long as
PNC Bank, National Association's long term unsecured debt rating shall be at
least "A" from S&P and Fitch and "A-1" from Moody's (if the deposits are to be
held in the account for more than 30 days) or PNC Bank, National Association's
short term deposit or short term unsecured debt rating shall be at least "F-1"
from Fitch, "P-1" from Moody's and "A-1" from S&P (if the deposits are to be
held in the account for 30 days or less), (E) such other account or accounts
with respect to which each of the Rating Agencies shall have confirmed in
writing that the then current rating assigned to any of the Certificates will
not be qualified, downgraded or withdrawn by reason thereof or (ii) a segregated
trust account or accounts maintained with the corporate trust department of a
federal or state chartered depository institution or trust company that, in
either case, has corporate trust powers, acting in its fiduciary capacity,
provided that any state chartered depository institution or trust company is
subject to regulation regarding fiduciary funds substantially similar to 12
C.F.R. ss. 9.10(b). Eligible Accounts may bear interest. No Eligible Account
shall be evidenced by a certificate of deposit, passbook or other similar
instrument.
"Eligible Investor": Either (i) a Qualified Institutional Buyer that
is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A or (ii) an Institutional Accredited
Investor.
"Environmental Assessment": An "environmental site assessment" as
such term is defined in, and meeting the criteria of, the American Society of
Testing Materials Standard Section E 1527-00, or any successor thereto.
"Environmental Indemnity Agreement": With respect to any Mortgage
Loan, any agreement between the Mortgagor (or a guarantor thereof) and the
originator of such Mortgage Loan relating to the Mortgagor's obligation to
remediate or monitor or indemnify for any environmental problems relating to the
related Mortgaged Property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Prohibited Holder": As defined in Section 5.02(c)(i)(A).
"ERISA Restricted Certificate": Any Class K, Class L, Class M, Class
N, Class P, Class Q 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).
"Exchange Act": The Securities Exchange Act of 1934, as amended from
time to time and the rules and regulations of the Commission thereunder.
"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 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.
"FIRREA": The Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, as it may be amended from time to time.
"Fitch": Fitch, Inc., and its successors in interest. If neither
Fitch nor any successor remains in existence, "Fitch" shall be deemed to refer
to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, the Paying Agent, the Master 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.
"Form 8-K Disclosure Information": As defined in Section 11.07.
"Xxxxxxx Mac": Federal Home Loan Mortgage Corporation or any
successor thereto.
"Gain-on-Sale Proceeds": With respect to any Mortgage Loan or
Companion Loan, as applicable, the excess of (i) Liquidation Proceeds net of any
related Liquidation Expenses over (ii) the Purchase Price for such Mortgage Loan
or Companion Loan, as applicable, on the date on which such Liquidation Proceeds
were received. For the avoidance of doubt, Gain-on-Sale Proceeds allocable to a
Companion Loan shall not be assets of the Trust Fund, the Lower-Tier REMIC or
the Upper-Tier REMIC.
"Gain-on-Sale Reserve Account": A custodial account or accounts (or
subaccount of the Distribution Account) created and maintained by the Paying
Agent, pursuant to Section 3.04(d) on behalf of the Trustee in trust for the
Certificateholders, which shall be entitled "LaSalle Bank National Association,
as Paying Agent, in trust for the registered Holders of X.X. Xxxxxx Chase
Commercial Mortgage Securities Trust 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19, Gain-on-Sale Reserve Account."
Any such account shall be an Eligible Account or a subaccount of an Eligible
Account.
"General Servicing Standards": As defined in Section 3.01(a)(ii).
"Green Hills Corporate 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 Green Hills Corporate Center AB
Mortgage Loan.
"Green Hills Corporate Center AB Mortgage Loan": That certain
Mortgage Loan identified on the Mortgage Loan Schedule as Mortgage Loan No. 4.
"Green Hills Corporate Center Intercreditor Agreement": That certain
Intercreditor Agreement Among Note Holders, dated as of March 30, 2007, by and
between CIBC Inc., as the A Note Holder, and Mezz Cap Finance, LLC, as the B
Note Holder. The Green Hills Corporate Center Intercreditor Agreement relates to
the Green Hills Corporate Center AB Mortgage Loan.
"Green Hills Corporate Center Mezzanine Intercreditor Agreement":
That certain Intercreditor Agreement, dated as of April 4, 2007, by and between
CIBC Inc., as senior lender, and RAIT Partnerhip, L.P., as mezzanine lender. The
Green Hills Corporate Center Mezzanine Intercreditor Agreement relates to the
Green Hills Corporate Center AB Mortgage Loan.
"Ground Lease": The ground lease pursuant to which any Mortgagor
holds a leasehold interest in the related Mortgaged Property and any estoppels
or other agreements executed and delivered by the ground lessor in favor of the
lender under the Mortgage Loan.
"Group 1 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 2.
"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.
"Harrisburg Portfolio Mezzanine Intercreditor Agreement": That
certain Intercreditor Agreement, dated as of April 4, 2007, by and between CIBC
Inc., as senior lender and RAIT Partnerhip, L.P., as mezzanine lender. The
Harrisburg Portfolio Mezzanine Intercreditor Agreement relates to the Harrisburg
Portfolio Mortgage Loan.
"Harrisburg Portfolio Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as Loan No. 12.
"Holiday Inn Express-Temecula 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 Holiday Inn Express-Temecula AB
Mortgage Loan.
"Holiday Inn Express-Temecula AB Mortgage Loan": That certain
Mortgage Loan identified on the Mortgage Loan Schedule as Mortgage Loan No. 96.
"Holiday Inn Express-Temecula Intercreditor Agreement": That certain
Intercreditor Agreement Among Note Holders, dated as of March 28, 2007, by and
between JPMorgan Chase Bank, N.A., as the A Note Holder, and Mezz Cap Finance,
LLC, as the B Note Holder. The Holiday Inn Express-Temecula Intercreditor
Agreement relates to the Holiday Inn Express-Temecula AB Mortgage Loan.
"Independent": When used with respect to any accountants, a Person
who is "independent" within the meaning of Rule 2-01(b) of the Securities and
Exchange Commission's Regulation S-X. When used with respect to any specified
Person, any such Person who (i) is in fact independent of the Trustee, the
Paying Agent, the Depositor, each Master Servicer, the Special Servicer, the
Directing Certificateholder, the Companion Holders and all Affiliates thereof,
(ii) does not have any material direct financial interest in or any material
indirect financial interest in any of the Trustee, the Paying Agent, the
Depositor, any Master Servicer, the Special Servicer, the Directing
Certificateholder, the Companion Holders or any Affiliate thereof and (iii) is
not connected with the Trustee, the Paying Agent, the Depositor, any Master
Servicer, the Special Servicer, the Directing Certificateholder, the Companion
Holders or any Affiliate thereof as an officer, employee, promoter, underwriter,
trustee, partner, director or Person performing similar functions; provided,
however, that a Person shall not fail to be Independent of the Trustee, the
Paying Agent, the Depositor, any Master Servicer, the Special Servicer, the
Directing Certificateholder, the Companion Holders or any Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of any Class of
securities issued by the Trustee, the Paying Agent, the Depositor, any Master
Servicer, the Special Servicer, the Directing Certificateholder, the Companion
Holders or any Affiliate thereof, as the case may be, provided such ownership
constitutes less than 1% of the total assets of such Person.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust within the meaning of Section
856(d)(3) of the Code if the Trust were a real estate investment trust (except
that the ownership test set forth in that Section shall be considered to be met
by any Person that owns, directly or indirectly, 35% or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee, the
Paying Agent, the applicable Master Servicer, any Companion Holder or the Trust,
delivered to the Trustee, the Paying Agent, 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, the Paying Agent and the
applicable Master Servicer of an Opinion of Counsel, which shall be at no
expense to the Trustee, the Paying Agent, 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 the applicable Master Servicer as of
the Closing Date, the Sub-Servicer under any such Sub-Servicing Agreement.
"Initial Sub-Servicing Agreement": Any Sub-Servicing Agreement in
effect as of the Closing Date.
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated
under the Act.
"Insurance and Condemnation Proceeds": All proceeds paid under any
Insurance Policy or in connection with the full or partial condemnation of a
Mortgaged Property, in either case, to the extent such proceeds are not applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor or any tenants or ground lessors, in either case, in accordance with
the Servicing Standards (and in the case of any AB Mortgage Loan, to the extent
any portion of such proceeds are received by the applicable Master
Servicer/Paying Agent in connection with such AB Mortgage Loan, 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 Agreement": Each of the 000 Xxxxxxxxx Xxxxxx
Intercreditor Agreement, the AmeriCold Portfolio Intercreditor Agreement, the
Green Hills Corporate Center Intercreditor Agreement, the ABB Automation, Inc.
Intercreditor Agreement, the Cumberland Tech Center Intercreditor Agreement, the
Holiday Inn Express-Temecula Intercreditor Agreement, the Veteran's Parkway
Intercreditor Agreement, the Green Hills Corporate Center Mezzanine
Intercreditor Agreement and the Harrisburg Portfolio Mezzanine Intercreditor
Agreement, and any intercreditor agreement entered into in connection with the
issuance to the direct or indirect equity holders in the Mortgagor of any future
mezzanine indebtedness permitted under the related Mortgage Loan documents.
"Interest Accrual Period": With respect to any Class of Regular
Certificates or the Uncertificated Lower-Tier Interests and any Distribution
Date, the period beginning on the first day of the calendar month preceding the
calendar month in which the related Distribution Date occurs and ending on the
last day of the calendar month preceding the calendar month in which such
Distribution Date occurs, calculated assuming that each month has 30 days and
each year has 360 days.
"Interest Distribution Amount": With respect to any Class of Regular
Certificates 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 for such Distribution Date and any
Accrued Interest From Recoveries for such Class, to the extent not previously
paid for all prior Distribution Dates.
"Interest Reserve Account": The trust account or subaccount of the
Distribution Account created and maintained by the Paying Agent pursuant to
Section 3.25 in the name of "LaSalle Bank National Association, as Paying Agent,
in trust for the registered holders of X.X. Xxxxxx Chase Commercial Mortgage
Securities Trust 2007-CIBC19, Commercial Mortgage Pass-Through Certificates,
Series 2007-CIBC19, 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 AB Mortgage Loan) or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section 5.02(b).
"Late Collections": With respect to any Mortgage Loan or Companion
Loan, all amounts received thereon prior to the related Determination Date,
whether as payments, Insurance and Condemnation Proceeds, Liquidation Proceeds
or otherwise, which represent late payments or collections of principal or
interest due in respect of such Mortgage Loan or Companion Loan (without regard
to any acceleration of amounts due thereunder by reason of default) on a Due
Date prior to the immediately preceding Determination Date and not previously
recovered. With respect to any REO Loan, all amounts received in connection with
the related REO Property prior to the related Determination Date, whether as
Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of principal or interest due or
deemed due in respect of such REO Loan or the predecessor Mortgage Loan or
Companion Loan (without regard to any acceleration of amounts due under the
predecessor Mortgage Loan or Companion Loan by reason of default) on a Due Date
prior to the immediately preceding Determination Date and not previously
recovered. The term "Late Collections" shall specifically exclude Penalty
Charges.
"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 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 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 000 Xxxxxxxxx Xxxxxx Mortgaged Property or the
AmeriCold Portfolio 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 000 Xxxxxxxxx Xxxxxx Mortgaged Property or the AmeriCold
Portfolio 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 (3) clause (v) and clause (vi) of the definition of
"Liquidation Proceeds," (except that a Liquidation Fee will be payable with
respect to any purchase by a mezzanine lender or the holder of a Companion Loan
if such purchase does not occur within 90 days following the date the related
Mortgage Loan becomes subject to such purchase option under the related
Intercreditor Agreement).
"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 or Corrected Mortgage Loan
through a trustee's sale, foreclosure sale, REO Disposition or otherwise,
exclusive of any portion thereof required to be released to the related
Mortgagor in accordance with applicable law and the terms and conditions of the
related Mortgage Note and Mortgage; (ii) the realization upon any deficiency
judgment obtained against a Mortgagor; (iii) (A) the purchase of a Defaulted
Mortgage Loan by the Option Holder pursuant to Section 3.18(a) or (B) any other
sale thereof pursuant to Section 3.18(c) and Section 3.18(e); (iv) the
repurchase of a Mortgage Loan by the applicable Mortgage Loan Seller pursuant to
Section 6 of the related Mortgage Loan Purchase Agreement; (v) the purchase of a
Mortgage Loan or REO Property by the Holders of the Controlling Class, the
Special Servicer, 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 applicable Companion Holder pursuant to Section
3.18(d), or (b) any mezzanine lender under a mezzanine loan made to an owner of
the Mortgagor of the related Mortgage Loan or REO Loan.
"Loan Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans that are
Group 1 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Loan Group 1 Principal
Shortfall for such Distribution Date, (b) that portion, if any, of the Scheduled
Principal Distribution Amount for such Distribution Date attributable to Loan
Group 1 and (c) that portion, if any, of the Unscheduled Principal Distribution
Amount for such Distribution Date attributable to Loan Group 1; provided, that
the Loan Group 1 Principal Distribution Amount for any Distribution Date shall
be reduced by the amount of any reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are paid or reimbursed from
principal collections on the Group 1 Mortgage Loans in a period during which
such principal collections would have otherwise been included in the Loan Group
1 Principal Distribution Amount for such Distribution Date, (ii) Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal collections on
the Group 1 Mortgage Loans in a period during which such principal collections
would have otherwise been included in the Loan Group 1 Principal Distribution
Amount for such Distribution Date and (iii) following the reimbursements
provided for in clauses (i) and (ii) above, the excess, if any of (A) the total
amount of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts,
plus interest on such Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts, that would have been paid or reimbursed from principal collections on
the Group 2 Mortgage Loans as provided for in clauses (i) and (ii) of the
definition of "Loan Group 2 Principal Distribution Amount" had the Loan Group 2
Principal Distribution Amount been sufficient to make such reimbursements in
full, over (B) the Loan Group 2 Principal Distribution Amount (prior to giving
effect to clauses (i), (ii) and (iii) of the definition of "Loan Group 2
Principal Distribution Amount") for that Distribution Date (provided, further,
(I) that, with respect to the amounts identified in clauses (i) and (ii) above,
if any of such amounts reimbursed from principal collections on the Group 1
Mortgage Loans are subsequently recovered on the related Mortgage Loan, subject
to the application of any recovery to increase the Loan Group 2 Principal
Distribution Amount as required under clause (II) of the definition of "Loan
Group 2 Principal Distribution Amount", such recovery will be applied to
increase the Loan Group 1 Principal Distribution Amount for the Distribution
Date related to the period in which such recovery occurs; and (II) that in the
case of clause (iii) above, if any of such amounts reimbursed from principal
collections on the Loan Group 2 Mortgage Loans are subsequently recovered on the
related Mortgage Loan, such recovery will first be applied to increase the Loan
Group 1 Principal Distribution Amount up to such amounts and then to increase
the Loan Group 2 Principal Distribution Amount).
"Loan Group 1 Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Loan Group 1
Principal Distribution Amount for the prior Distribution Date and (b) the
Certificate Balance of the Class A-1, Class A-2, Class A-3, Class A-4 and Class
A-SB Certificates, exceeds (2) the aggregate amount distributed in respect of
principal on the Class X-0, Xxxxx X-0, Class A-3, Class A-4 and Class A-SB
Certificates on the prior Distribution Date. There will be no Loan Group 1
Principal Shortfall on the first Distribution Date.
"Loan Group 2": Collectively, all of the Mortgage Loans that are
Group 2 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Loan Group 2 Principal
Shortfall for such Distribution Date, (b) that portion, if any, of the Scheduled
Principal Distribution Amount for such Distribution Date attributable to Loan
Group 2 and (c) that portion, if any, of the Unscheduled Principal Distribution
Amount for such Distribution Date attributable to Loan Group 2; provided, that
the Loan Group 2 Principal Distribution Amount for any Distribution Date shall
be reduced by the amount of any reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are paid or reimbursed from
principal collections on the Group 2 Mortgage Loans in a period during which
such principal collections would have otherwise been included in the Loan Group
2 Principal Distribution Amount for such Distribution Date, (ii) Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal collections on
the Group 2 Mortgage Loans in a period during which such principal collections
would have otherwise been included in the Loan Group 2 Principal Distribution
Amount for such Distribution Date and (iii) following the reimbursements
provided for in clauses (i) and (ii) above, the excess, if any of (A) the total
amount of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts,
plus interest on such Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts, that would have been paid or reimbursed from principal collections on
the Group 1 Mortgage Loans as provided for in clauses (i) and (ii) of the
definition of "Loan Group 1 Principal Distribution Amount" had the Loan Group 1
Principal Distribution Amount been sufficient to make such reimbursements in
full, over (B) the Loan Group 1 Principal Distribution Amount (prior to giving
effect to clauses (i), (ii) and (iii) of the definition of "Loan Group 1
Principal Distribution Amount") for that Distribution Date (provided, further,
(I) that, with respect to the amounts identified in clauses (i), (ii) and (iii)
above, if any of such amounts reimbursed from principal collections on the Group
2 Mortgage Loans are subsequently recovered on the related Mortgage Loan,
subject to the application of any recovery to increase the Loan Group 1
Principal Distribution Amount as required under clause (II) of the definition of
"Loan Group 1 Principal Distribution Amount", such recovery will be applied to
increase the Loan Group 2 Principal Distribution Amount for the Distribution
Date related to the period in which such recovery occurs; and (II) that in the
case of clause (iii) above, if any of such amounts reimbursed from principal
collections on the Loan Group 1 Mortgage Loans are subsequently recovered on the
related Mortgage Loan, such recovery will first be applied to increase the Loan
Group 2 Principal Distribution Amount up to such amounts and then to increase
the Loan Group 1 Principal Distribution Amount).
"Loan Group 2 Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Loan Group 2
Principal Distribution Amount for the prior Distribution Date and (b) the
Certificate Balance of the Class A-1A Certificates, exceeds (2) the aggregate
amount distributed in respect of principal on the Class A-1A Certificates on the
prior Distribution Date. There will be no Loan Group 2 Principal Shortfall on
the first Distribution Date.
"Loan Pair": Collectively, a Companion Loan and the related AB
Mortgage Loan.
"Lower-Tier Distribution Account": The segregated account, accounts
or sub-accounts created and maintained by the Paying Agent pursuant to Section
3.04(b) in trust for the Certificateholders, which shall be entitled "LaSalle
Bank National Association, as Paying Agent, in trust for the registered Holders
of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-CIBC19,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC19, Lower-Tier
Distribution Account." Any such account, accounts or sub-accounts shall be an
Eligible Account.
"Lower-Tier Distribution Amount": As defined in Section 4.01(b).
"Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interests, (i) on or prior to the first Distribution
Date, an amount equal to the Original Lower-Tier Principal Amount of such Class
as specified in the Preliminary Statement hereto, and (ii) as of any date of
determination after the first Distribution Date, an amount equal to the
Certificate Balance of the Class of Related Certificates on the Distribution
Date immediately prior to such date of determination (determined as adjusted
pursuant to Section 1.02(iii)).
"Lower-Tier REMIC": One of two separate REMICs comprising a portion
of the Trust Fund, the assets of which consist of the Mortgage Loans, any REO
Property with respect thereto (or an allocable portion thereof, in the case of
the AB Mortgage Loans), or the Trust Fund's beneficial interest in the REO
Property with respect to the 000 Xxxxxxxxx Xxxxxx Whole Loan or the AmeriCold
Portfolio Whole Loan, such amounts as shall from time to time be held in the
Certificate Account (other than with respect to the Companion Loans), the REO
Account, if any, the Interest Reserve Account, the Gain-on-Sale Reserve Account
and the Lower-Tier Distribution Account, and all other property included in the
Trust Fund that is not in the Upper-Tier REMIC.
"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 No. 1": Capmark Finance Inc., and its successors in
interest and assigns, or any successor Master Servicer appointed as allowed
herein.
"Master Servicer No. 1 Servicing Standard": As defined in Section
3.01(a)(i).
"Master Servicer No. 2": Xxxxx Fargo Bank, N.A., and its successors
in interest and assigns, or any successor Master Servicer appointed as allowed
herein.
"Master Servicer No. 2 Servicing Standard": As defined in Section
3.01(a)(ii).
"Master Servicer": Master Servicer No. 1 or Master Servicer No. 2,
as the case may be.
"Maturity Date": With respect to any Mortgage Loan or Companion Loan
as of any date of determination, the date on which the last payment of principal
is due and payable under the related Mortgage Note, after taking into account
all Principal Prepayments received prior to such date of determination, but
without giving effect to (i) any acceleration of the principal of such Mortgage
Loan or Companion Loan by reason of default thereunder or (ii) any grace period
permitted by the related Mortgage Note.
"Merger Notice": As defined in Section 6.02(b).
"Mezz Cap AB Mortgage Loan": The Green Hills Corporate Center
Mortgage Loan, the ABB Automation, Inc. Mortgage Loan, the Cumberland Tech
Center Mortgage Loan, the Holiday Inn Express-Temecula Mortgage Loan and the
Veteran's Parkway Mortgage Loan.
"Mezz Cap AB Mortgage Loan Intercreditor Agreements": The
Intercreditor Agreements related to the Mezz Cap AB Mortgage Loans.
"Monthly Payment": With respect to any Mortgage Loan or Companion
Loan, the scheduled monthly payment of principal and/or interest on such
Mortgage Loan or Companion Loan, including any Balloon Payment, which is payable
(as the terms of the applicable Mortgage Loan or Companion Loan may be changed
or modified in connection with a bankruptcy or similar proceedings involving the
related Mortgagor or by reason of a modification, extension, waiver or amendment
granted or agreed to pursuant to the terms hereof) by a Mortgagor from time to
time under the related Mortgage Note and applicable law, without regard to any
acceleration of principal of such Mortgage Loan or Companion Loan by reason of
default thereunder.
"Moody's": Xxxxx'x Investors Service, Inc. If neither Moody's nor
any successor remains in existence, "Moody's" shall be deemed to refer to such
other nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Paying Agent, the Master 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 LaSalle Bank
National Association, as trustee for the registered holders of X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-CIBC19,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC19"
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 "LaSalle Bank National Association, as trustee for the
registered holders of X.X. Xxxxxx Chase Commercial Mortgage
Securities Trust 2007-CIBC19, Commercial Mortgage Pass-Through
Certificates, Series 2007-CIBC19" or in blank;
(iv) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the most recent assignee of record, in each case with
evidence of recording thereon (except for recording information not
yet available if the Mortgage or an assignment thereof has not been
returned from the applicable recording office);
(v) an original assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage and to the
extent not already assigned pursuant to preceding clause (iii)), in
recordable form (except for recording information not yet available
if the instrument being assigned has not been returned from the
applicable recording office), executed by the applicable assignee of
record to "LaSalle Bank National Association, as trustee for the
registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Trust 2007-CIBC19, Commercial Mortgage Pass-Through
Certificates, Series 2007-CIBC19" or in blank;
(vi) an original or copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the applicable Mortgage Loan Seller;
(vii) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage), in complete
form (except for recording information not yet available if the
instrument being assigned has not been returned from the applicable
recording office), executed by the applicable Mortgage Loan Seller
to "LaSalle Bank National Association, as trustee for the registered
holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-CIBC19, Commercial Mortgage Pass-Through Certificates, Series
2007-CIBC19" or in blank;
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements, with
evidence of recording thereon, where appropriate, in those instances
where the terms or provisions of the Mortgage, Mortgage Note or any
related security document have been consolidated or modified or the
Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof, together with all endorsements or riders that were issued
with or subsequent to the issuance of such policy, insuring the
priority of the Mortgage as a first lien on the Mortgagor's fee or
leasehold interest in the Mortgaged Property, or if the policy has
not yet been issued, an original or copy of a "marked-up" written
commitment (marked as binding and in all cases countersigned by the
title insurer or its authorized agent) or the pro forma or specimen
title insurance policy (accepted or approved in writing by the title
insurer or its authorized agent) or an agreement to provide the same
pursuant to lender's escrow trust instructions executed by an
authorized representative of the title insurance company, provided
the policy is issued within 18 months from the Closing Date, in
connection with the related Mortgage Loan;
(x) the original or copy of any guaranty of the obligations of
the Mortgagor under the Mortgage Loan and any intervening
assignments;
(xi) all UCC Financing Statements, assignments and
continuation statements or copies thereof, as filed or recorded, or
in form that is complete and suitable for filing or recording, as
appropriate, or other evidence of filing or recording sufficient to
perfect (and maintain the perfection of) the security interest held
by the originator of the Mortgage Loan (and each assignee of record
prior to the Trustee) in and to the personalty of the Mortgagor at
the Mortgaged Property (in each case with evidence of filing or
recording thereon, with the exception of filing or recording
information not yet available because the UCC Financing Statement,
assignment or continuation statement, as the case may be, has not
yet been returned from the applicable filing or recording office),
and to transfer such security interest to the Trustee;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to
above was not signed by the Mortgagor;
(xiii) with respect to any Mortgage Loans with Additional
Debt, a co-lender agreement, a subordination agreement or other
intercreditor agreement, pursuant to which such Additional Debt will
be subordinated to, or pari passu with, such Mortgage Loan as set
forth in such intercreditor agreement;
(xiv) any additional documents required to be added to the
Mortgage File pursuant to this Agreement;
(xv) with respect to any Mortgage Loan secured by a ground
lease, the related ground lease or a copy thereof and any related
ground lessor estoppels;
(xvi) a copy of any letter of credit securing such Mortgage
Loan and, within sixty (60) days of the Closing Date or such earlier
date as required by the issuer of the letter of credit, a copy of
the appropriate transfer or assignment documents (which may be in
the form of an amendment) for such letter of credit;
(xvii) a copy of any Environmental Indemnity Agreement,
together with a copy of any environmental insurance policy;
(xviii) a copy of any loan agreement(s);
(xix) a copy of any escrow agreement(s);
(xx) a copy of any property management agreement(s);
(xxi) a copy of any franchise agreements and comfort letters
related thereto;
(xxii) a copy of any lock-box or cash management agreement(s);
(xxiii) a list related to such Mortgage Loan indicating the
related Mortgage Loan documents included in the related Mortgage
File (the "Mortgage Loan Checklist");
(xxiv) a copy of all environmental reports that were received
by the applicable Mortgage Loan Seller relating to the Mortgaged
Property;
(xxv) with respect to each Mortgage Loan that has one or more
Companion Loan(s), the related Intercreditor Agreement and a copy of
each Mortgage Note relating to such Companion Loan(s), rather than
the original;
(xxvi) with respect to the 000 Xxxxxxxxx Xxxxxx Mortgage Loan,
a copy of the 0000-XXX00 Xxxxxxx Agreement; and
(xxvii) with respect to the AmeriCold Portfolio Mortgage Loan,
a copy of the 2007-CIBC18 Pooling Agreement;
provided, however, that (a) whenever the term "Mortgage File" is used to refer
to documents held by the Trustee, or a Custodian appointed thereby, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually received by the Trustee or a Custodian
appointed thereby, (b) if there exists with respect to any Crossed Group only
one original or certified copy of any document referred to in the definition of
"Mortgage File" covering all of the Mortgage Loans in such Crossed Group, then
the inclusion of such original or certified copy in the Mortgage File for any of
the Mortgage Loans constituting such Crossed Group shall be deemed the inclusion
of such original or certified copy in the Mortgage File for each such Mortgage
Loan, (c) to the extent that this Agreement refers to a "Mortgage File" for any
Companion Loan, such "Mortgage File" shall be construed to mean the Mortgage
File for the related Mortgage Loan (except that references to the Mortgage Note
for the Companion Loan otherwise described above shall be construed to instead
refer to a photocopy of such Mortgage Note) and (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.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other documents contained in the related Mortgage File and
any related agreements. As used in this Agreement, the term "Mortgage Loan" does
not include any Companion Loan.
"Mortgage Loan Checklist": As defined in the definition of "Mortgage
File."
"Mortgage Loan Purchase Agreement": Each of the agreements between
the Depositor and each Mortgage Loan Seller, relating to the transfer of all of
such Mortgage Loan Seller's right, title and interest in and to the related
Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Exhibit B, which list sets forth the following information with respect to each
Mortgage Loan:
(i) the loan identification number and loan servicing number
(as specified in Annex A-1 to the Prospectus);
(ii) the Mortgagor's name;
(iii) the street address (including city, state, county and
zip code) and name of the related Mortgaged Property;
(iv) the Mortgage Rate in effect at origination;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) original term to stated maturity, (b) remaining
term to stated maturity and (c) Maturity Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date;
(xi) the applicable Servicing Fee Rate;
(xii) whether the Mortgage Loan is a 30/360 Mortgage Loan or
an Actual/360 Mortgage Loan;
(xiii) [Reserved];
(xiv) [Reserved];
(xv) whether such Mortgage Loan is secured by the related
Mortgagor's interest in a ground lease;
(xvi) identifying any Mortgage Loans with which such Mortgage
Loan is cross-defaulted or cross-collateralized;
(xvii) the originator of such Mortgage Loan and the Mortgage
Loan Seller;
(xviii) whether such Mortgage Loan has a guarantor;
(xix) whether such Mortgage Loan is secured by a letter of
credit;
(xx) amount of any reserve or escrowed funds that were
deposited at origination and any ongoing periodic deposit
requirements;
(xxi) number of grace days;
(xxii) whether a cash management agreement or lock-box
agreement is in place;
(xxiii) the general property type of the related Mortgaged
Property;
(xxiv) whether the Mortgage Loan permits defeasance;
(xxv) the interest accrual period;
(xxvi) the applicable Loan Group to which the Mortgage Loan
belongs; and
(xxvii) the number of units, pads or square feet with respect
to each Mortgaged Property.
Such Mortgage Loan Schedule shall also set forth the aggregate of
the amounts described under clause (vii) above for all of the Mortgage Loans.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"Mortgage Loan Seller": Each of JPMorgan Chase Bank, National
Association, a national banking association, or its successor in interest and
CIBC Inc., a Delaware corporation, or its successor in interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan or Companion Loan, together
with any rider, addendum or amendment thereto.
"Mortgage Rate": With respect to: (i) any Mortgage Loan or Companion
Loan on or prior to its Maturity Date, the annual rate at which interest is
scheduled (in the absence of a default) to accrue on such Mortgage Loan or
Companion Loan from time to time in accordance with the related Mortgage Note
and applicable law; or (ii) any Mortgage Loan or Companion Loan after its
Maturity Date, the annual rate described in clause (i) above determined without
regard to the passage of such Maturity Date.
"Mortgaged Property": The real property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Due Period,
exceeds (b) the aggregate amount deposited by the 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 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, 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 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, 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) in respect of such Mortgage Loan during such one-month period at the
related Net Mortgage Rate; provided, further, that, with respect to each
Interest Reserve Loan, the Net Mortgage Rate for the one month period (A)
preceding the Due Dates that occur in January and February in any year which is
not a leap year or preceding the Due Date that occurs in February in any year
which is a leap year (in either case, unless the related Distribution Date is
the final Distribution Date), will be the per annum rate stated in the related
Mortgage Note less the related Administrative Cost Rate and (B) preceding the
Due Date in March (or February, if the related Distribution Date is the final
Distribution Date), will be determined inclusive of the amounts withheld in the
immediately preceding January and February, if applicable. With respect to any
REO Loan, the Net Mortgage Rate shall be calculated as described above,
determined as if the predecessor Mortgage Loan had remained outstanding.
"Net Operating Income": With respect to any Mortgaged Property, for
any Mortgagor's fiscal year end, Net Operating Income will be calculated in
accordance with the standard definition of "Net Operating Income" approved from
time to time endorsed and put forth by the CMSA.
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust has the right to
renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Loan which, in the
reasonable judgment of the applicable Master Servicer or the Trustee, as
applicable, will not be ultimately recoverable, together with any accrued and
unpaid interest thereon at the Reimbursement Rate, from Late Collections or any
other recovery on or in respect of such Mortgage Loan or REO Loan; provided,
however, that the Special Servicer may, at its option, in consultation with the
Directing Certificateholder, make an affirmative determination in accordance
with the Servicing Standards, that any P&I Advance previously made or proposed
to be made is a Nonrecoverable P&I Advance and shall deliver to the applicable
Master Servicer and the Trustee notice of such determination. Any such
determination shall be conclusive and binding on the applicable Master Servicer
and the Trustee, provided, however, the Special Servicer shall have no
obligation (or any right) to make an affirmative determination that any P&I
Advance is or would be recoverable and in the absence of a determination by the
Special Servicer that such P&I Advance is or would be a Non-Recoverable P&I
Advance, such decision shall remain with the applicable Master Servicer or
Trustee, as the case may be. Notwithstanding the foregoing, if the Special
Servicer makes a determination that only a portion, and not all, of any
previously made or proposed P&I Advance is a Nonrecoverable P&I Advance, the
applicable Master Servicer and the Trustee shall have the right to make its own
subsequent determination that any remaining portion of any such previously made
or proposed P&I Advance is a Nonrecoverable P&I Advance. In making such
recoverability determination, the applicable Master Servicer, Special Servicer
or Trustee, as applicable, will be entitled (a) to consider (among other things)
(i) the obligations of the Mortgagor under the terms of the related Mortgage
Loan as it may have been modified and (ii) the related Mortgaged Properties in
their "as is" or then current conditions and occupancies, as modified by such
party's assumptions (consistent with the Servicing Standards in the case of the
applicable Master Servicer and the Special Servicer or in its good faith
business judgment in the case of the Trustee, solely in its capacity as Trustee)
regarding the possibility and effects of future adverse change with respect to
such Mortgaged Properties, (b) to estimate and consider (among other things)
future expenses, (c) to estimate and consider (consistent with the Servicing
Standards in the case of the applicable Master Servicer and the Special Servicer
or in its good faith business judgment in the case of the Trustee, solely in its
capacity as Trustee) (among other things) the timing of recoveries and (d) to
give due regard to the existence of any Nonrecoverable Advances which, at the
time of such consideration, the recovery of which are being deferred or delayed
by the applicable Master Servicer, in light of the fact that Related Proceeds
are a source of recovery not only for the Advance under consideration but also a
potential source of recovery for such delayed or deferred Advance. In addition,
any Person, in considering whether a P&I Advance is a Nonrecoverable Advance,
will be entitled to give due regard to the existence of any outstanding
Nonrecoverable Advance or Workout Delayed Reimbursement Amount with respect to
other Mortgage Loans which, at the time of such consideration, the reimbursement
of which is being deferred or delayed by the applicable Master Servicer or the
Trustee because there is insufficient principal available for such
reimbursement, in light of the fact that proceeds on the related Mortgage Loan
are a source of reimbursement not only for the P&I Advance under consideration,
but also as a potential source of reimbursement of such Nonrecoverable Advance
or Workout-Delayed Reimbursement Amounts which are or may be being deferred or
delayed. In addition, any such Person may update or change its recoverability
determinations at any time (but not reverse any other Person's determination
that an Advance is a Nonrecoverable Advance) and, consistent with the Servicing
Standards, in the case of the applicable Master Servicer or in its good faith
business judgment in the case of the Trustee (solely in its capacity as
Trustee), may obtain, promptly upon request, from the Special Servicer any
reasonably required analysis, Appraisals or market value estimates or other
information in the Special Servicer's possession for making a recoverability
determination. Absent bad faith, the applicable Master Servicer's, Special
Servicer's or the Trustee's determination as to the recoverability of any P&I
Advance shall be conclusive and binding on the Certificateholders. The
determination by the applicable Master Servicer, the Special Servicer or the
Trustee, as applicable, that the applicable Master Servicer or the 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 Trustee, the Paying Agent, the Directing
Certificateholder, the Depositor, or by the Trustee to the Depositor, the
applicable Master Servicer, the Special Servicer, the Paying Agent and the
Directing Certificateholder. The Officer's Certificate shall set forth such
determination of nonrecoverability and the considerations of the applicable
Master Servicer, the Special Servicer or the Trustee, as applicable, forming the
basis of such determination (which shall be accompanied by, to the extent
available, income and expense statements, rent rolls, occupancy status, property
inspections and any other information used by the applicable Master Servicer,
the Special Servicer or the Trustee, as applicable, to make such determination
and shall include any existing Appraisal of the related Mortgage Loan or
Mortgaged Property). The Trustee shall be entitled to conclusively rely on the
applicable Master Servicer's determination that a P&I Advance is or would be
nonrecoverable and shall conclusively rely on and be bound by any determination
of the Special Servicer that a P&I Advance is or would be nonrecoverable, and
the applicable Master Servicer shall conclusively rely on and be bound by the
Special Servicer's determination that a P&I Advance is or would be
nonrecoverable. In the case of a cross collateralized Mortgage Loan, such
recoverability determination shall take into account the cross collateralization
of the related cross collateralized Mortgage Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan (other than the 000
Xxxxxxxxx Xxxxxx Mortgage Loan and the AmeriCold Portfolio Mortgage Loan) or REO
Property which, in the reasonable judgment of the applicable Master Servicer,
the Special Servicer or the Trustee, as the case may be, will not be ultimately
recoverable, together with any accrued and unpaid interest thereon, at the
Reimbursement Rate, from Late Collections or any other recovery on or in respect
of such Mortgage Loan or REO Property. In making such recoverability
determination, such Person will be entitled (a) to consider (among other things)
(i) the obligations of the Mortgagor under the terms of the related Mortgage
Loan as it may have been modified and (ii) the related Mortgaged Properties in
their "as is" or then current conditions and occupancies, as modified by such
party's assumptions (consistent with the Servicing Standards in the case of the
applicable Master Servicer or the Special Servicer or in its good faith business
judgment in the case of the Trustee, solely in its capacity as Trustee)
regarding the possibility and effects of future adverse change with respect to
such Mortgaged Properties, (b) to estimate and consider (consistent with the
Servicing Standards in the case of the applicable Master Servicer or the Special
Servicer or in its good faith business judgment in the case of the Trustee,
solely in its capacity as Trustee) (among other things) future expenses and (c)
to estimate and consider (among other things) the timing of recoveries. In
addition, any Person, in considering whether a Servicing Advance is a
Nonrecoverable Servicing Advance, will be entitled to give due regard to the
existence of any Nonrecoverable Advance or Workout Delayed Reimbursement Amounts
with respect to other Mortgage Loans which, at the time of such consideration,
the recovery of which are being deferred or delayed by the 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 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 Trustee, the Paying Agent,
the Directing Certificateholder, and the Depositor, or by the Trustee to the
Depositor, the applicable Master Servicer, the Special Servicer, the Paying
Agent and the Directing Certificateholder; provided, however, that the Special
Servicer may, at its option, in consultation with the Directing
Certificateholder, make an affirmative determination in accordance with the
Servicing Standards, that any Servicing Advance previously made or proposed to
be made is a Nonrecoverable Servicing Advance and shall deliver to the
applicable Master Servicer and the Trustee notice of such determination. Any
such determination shall be conclusive and binding on the applicable Master
Servicer, the Special Servicer and the Trustee, provided, however the Special
Servicer shall have no such obligation (or any right) to make an affirmative
determination that any Servicing Advance is or would be recoverable and in the
absence of a determination by the Special Servicer that such Servicing Advance
is or would be a Nonrecoverable Servicing Advance, such decision shall remain
with the applicable Master Servicer or the Trustee, as the case may be.
Notwithstanding the foregoing, if the Special Servicer makes a determination
that only a portion, and not all, of any previously made or proposed Servicing
Advance is a Nonrecoverable Servicing Advance, the applicable Master Servicer
and the Trustee shall have the right to make its own subsequent determination
that any remaining portion of any such previously made or proposed Servicing
Advance is a Nonrecoverable Servicing Advance. The Officer's Certificate shall
set forth such determination of nonrecoverability and the considerations of the
applicable Master Servicer, the Special Servicer or the Trustee, as applicable,
forming the basis of such determination (which shall be accompanied by, to the
extent available, related income and expense statements, rent rolls, occupancy
status and property inspections, and shall include any existing Appraisal of the
related Mortgage Loan or Mortgaged Property). The Special Servicer shall
promptly furnish any party required to make Servicing Advances hereunder with
any information in its possession regarding the Specially Serviced Mortgage
Loans and REO Properties as such party required to make Servicing Advances may
reasonably request for purposes of making recoverability determinations. The
Trustee shall be entitled to conclusively rely on the applicable Master
Servicer's determination that a Servicing Advance is or would be nonrecoverable
and shall conclusively rely on and be bound by any determination of the Special
Servicer that a Servicing Advance is or would be nonrecoverable, and the
applicable Master Servicer shall conclusively rely on and be bound by the
Special Servicer's determination in writing that a Servicing Advance is or would
be nonrecoverable. In the case of a cross collateralized Mortgage Loan, such
recoverability determination shall take into account the cross collateralization
of the related cross collateralized Mortgage Loan. The determination as to the
recoverability of any servicing advance previously made or proposed to be made
in respect of the 000 Xxxxxxxxx Xxxxxx Whole Loan shall be made by the 000
Xxxxxxxxx Xxxxxx Master Servicer, the 000 Xxxxxxxxx Xxxxxx Special Servicer, the
000 Xxxxxxxxx Xxxxxx Trustee or the 000 Xxxxxxxxx Xxxxxx Co-Trustee, as the case
may be, pursuant to the 0000-XXX00 Xxxxxxx Agreement. The determination as to
the recoverability of any servicing advance previously made or proposed to be
made in respect of the AmeriCold Portfolio Whole Loan shall be made by the
AmeriCold Portfolio Master Servicer, the AmeriCold Portfolio Special Servicer,
the AmeriCold Portfolio Primary Servicer or the AmeriCold Portfolio Trustee, as
the case may be, pursuant to the 2007-CIBC18 Pooling Agreement.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class P, Class Q, Class NR, Class R or Class LR Certificate.
"Non-Specially Serviced Mortgage Loan": Any Mortgage Loan (other
than the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the AmeriCold Portfolio Mortgage
Loan) or Companion Loan that is not a Specially Serviced Mortgage Loan.
"Non-U.S. Person": Any person other than a U.S. Person, unless, with
respect to the Transfer of a Residual Certificate, (i) such person holds such
Residual Certificate in connection with the conduct of a trade or business
within the United States and furnishes the Transferor and the Certificate
Registrar with an effective Internal Revenue Service Form W-8ECI (or successor
form) or (ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes. A Person
shall be treated as a Non-U.S. Person, (A) notwithstanding clause (i) of the
preceding sentence, if it is a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes) any interest in which is owned
(or may be owned pursuant to the applicable partnership agreement), directly or
indirectly (other than through a U.S. corporation), by a Non-U.S. Person or (B)
if such Person is a U.S. Person with respect to whom income from a Residual
Certificate is attributable to a foreign permanent establishment of fixed base,
within the meaning of an applicable income treaty, of such Person or any other
U.S. Person.
"Notional Amount": In the case of the Class X 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-2, Class X-0, Xxxxx
X-0, Class A-SB, Class A-1A, Class A-M, Class A-J, Class X, Class B, Class C,
Class D and Class E Certificates.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the applicable Master Servicer or the Special Servicer or any Additional
Servicer, as the case may be, or a Responsible Officer of the Trustee or Paying
Agent, as the case may be.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the applicable Master
Servicer or the Special Servicer, acceptable in form and delivered to the
Trustee and the Paying Agent, except that any opinion of counsel relating to (a)
the qualification of the Upper-Tier REMIC or Lower-Tier REMIC as a REMIC, (b)
compliance with the REMIC Provisions or (c) 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 X and the Residual Certificates), 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 Securitization": As defined in Section 11.06.
"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 Trustee, as applicable, pursuant to
Section 4.03 or Section 7.05.
"P&I Advance Date": The Business Day immediately prior to each
Distribution Date.
"P&I Advance Determination Date": With respect to any Distribution
Date, the Business Day prior to the P&I Advance Date.
"Pass-Through Rate": Any of the Class A-1 Pass-Through Rate, the
Class A-2 Pass-Through Rate, the Class A-3 Pass-Through Rate, the Class A-4
Pass-Through Rate, the Class A-SB Pass-Through Rate, the Class A-1A Pass-Through
Rate, the Class A-M Pass-Through Rate, the Class A-J Pass-Through Rate, the
Class B Pass-Through Rate, the Class C Pass-Through Rate, the Class D
Pass-Through Rate, the Class E Pass-Through Rate, the Class F Pass-Through Rate,
the Class G Pass-Through Rate, the Class H Pass-Through Rate, the Class J
Pass-Through Rate, the Class K Pass-Through Rate, the Class L Pass-Through Rate,
the Class M Pass-Through Rate, the Class N Pass-Through Rate, the Class P
Pass-Through Rate, the Class Q Pass-Through Rate, the Class NR Pass-Through Rate
or the Class X Pass-Through Rate.
"Paying Agent": LaSalle Bank National Association, a national
banking association organized under the laws of the United States, or any
successor appointed thereto pursuant to Section 5.07 or any successor Paying
Agent appointed hereunder.
"PCAOB": The Public Company Accounting Oversight Board.
"Penalty Charges": With respect to any Mortgage Loan (or successor
REO Loan) or Companion Loan (or successor REO Loan), any amounts actually
collected thereon (or, in the case of a Mortgage Loan or Companion Loan (or
successor REO Loan thereto) that is part of a Loan Pair, actually collected on
such Loan Pair and allocated and paid on such Mortgage Loan or Companion Loan
(or successor REO Loan) in accordance with the related Intercreditor Agreement)
that represent late payment charges or Default Interest, other than a Yield
Maintenance Charge or prepayment premium.
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made with respect to
the related Class. With respect to any Regular Certificate, the percentage
interest is equal to the Denomination of such Certificate divided by the
Original Certificate Balance or Original Notional Amount, as applicable, of such
Class of Certificates as of the Closing Date. With respect to a Residual
Certificate, the percentage interest is set forth on the face thereof.
"Performance Certification": As defined in Section 11.06.
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Paying
Agent, or managed by the Paying Agent or any affiliate of the Paying Agent, if
otherwise qualifying hereunder), regardless whether issued by the Depositor, the
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 Certificate as evidenced in writing;
(ii) time deposits, unsecured certificates of deposit, or
bankers' acceptances that mature in one (1) year or less after the
date of issuance and are issued or held by any depository
institution or trust company (including the Trustee) incorporated or
organized under the laws of the United States of America or any
State thereof and subject to supervision and examination by federal
or state banking authorities, so long as the commercial paper or
other short- term debt obligations of such depository institution or
trust company are rated in the highest rating categories of each
Rating Agency or such other rating as would not result in the
downgrading, withdrawal or qualification of the then current rating
assigned by each Rating Agency to any Class of Certificates 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 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 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); 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 as evidenced in writing and (b) which qualifies as a
"cash flow investment" pursuant to Section 860G(a)(6) of the Code;
provided, however, that in each case if the investment is rated by S&P, (a) it
shall have a predetermined fixed dollar of principal due at maturity that cannot
vary or change and (b) any such investment that provides for a variable rate of
interest must have an interest rate that is tied to a single interest rate index
plus a fixed spread, if any, and move proportionately with such index; and
provided further, however, that no such instrument shall be a Permitted
Investment (a) if such instrument evidences principal and interest payments
derived from obligations underlying such instrument and the interest payments
with respect to such instrument provide a yield to maturity at the time of
acquisition of greater than 120% of the yield to maturity at par of such
underlying obligations or (b) if such instrument may be redeemed at a price
below the purchase price; and provided, further, however, that no amount
beneficially owned by the Upper-Tier REMIC or the Lower-Tier REMIC (even if not
yet deposited in the Trust) may be invested in investments (other than money
market funds) treated as equity interests for federal income tax purposes,
unless the 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 or the Lower-Tier REMIC. Permitted Investments that are
subject to prepayment or call may not be purchased at a price in excess of par.
"Permitted Transferee": Any Person or any agent thereof other than
(a) a Disqualified Organization, (b) any other Person so designated by the
Certificate Registrar based upon an opinion of counsel to the effect that the
transfer of an Ownership Interest in any Residual Certificate to such Person may
cause the Trust Fund to fail to qualify as one or more REMICs at any time that
the Certificates are outstanding and (c) a Person that is a Non-U.S. Person.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": A "constant prepayment rate" of 0% used for
determining the accrual of original issue discount and market discount, if any,
and the amortization premium, if any, on the Certificates for federal income tax
purposes.
"Prepayment Interest Excess": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Due Date and prior to the following
Determination Date, the amount of interest (net of the related Servicing Fees),
to the extent collected from the related Mortgagor (without regard to any
prepayment premium or Yield Maintenance Charge actually collected), that would
have accrued at a rate per annum equal to the sum of (x) the related Net
Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate, on the amount
of such Principal Prepayment from and after such Due Date and ending on the date
of such prepayment.
"Prepayment Interest Shortfall": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Determination Date (or, with respect to
each Mortgage Loan with a Due Date occurring after the related Determination
Date, the related Due Date) and prior to the following Due Date, the amount of
interest, to the extent not collected from the related Mortgagor (without regard
to any prepayment premium or Yield Maintenance Charge actually collected), that
would have accrued at a rate per annum equal to the sum of (x) the related Net
Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate, on the amount
of such Principal Prepayment during the period commencing on the date as of
which such Principal Prepayment was applied to such Mortgage Loan and ending on
such following Due Date.
"Primary Collateral": With respect to any Crossed Loan, that portion
of the Mortgaged Property designated as directly securing such Crossed Loan and
excluding any Mortgaged Property as to which the related lien may only be
foreclosed upon by exercise of the cross-collateralization provisions of such
Crossed Loan.
"Primary Servicing Fee": The monthly fee payable by the 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 Paying Agent in its reasonable discretion) as may be in
effect from time to time, or, if the "Prime Rate" no longer exists, such other
comparable rate (as determined by the Paying Agent in its reasonable discretion)
as may be in effect from time to time.
"Principal Distribution Amount": With respect to any Distribution
Date and any Class of Regular Certificates (other than the Class X
Certificates), 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, Class A-M, Class A-J, Class B, Class C, Class D, Class
E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class
P, Class Q and Class NR Certificates for such preceding Distribution Date
pursuant to Section 4.01(a) on such preceding Distribution Date. The Principal
Shortfall for the initial Distribution Date will be zero.
"Privileged Person": Each Rating Agency, any of the Holders of each
Class of Certificates, each Underwriter, the Initial Purchaser, each Mortgage
Loan Seller (solely with respect to the Mortgage Loans sold by such Mortgage
Loan Seller to the Trust) and certain financial market publishers (which
initially shall be Bloomberg, L.P., Xxxxx, LLC and Intex Solutions, Inc.), any
Companion Holder, each party to this Agreement, the Directing Certificateholder,
any designee of the Depositor and any other Person who shall have provided the
Paying Agent with a certificate, using the form attached hereto as Exhibit S,
which form is available from the Paying Agent, certifying that such Person is a
Certificateholder, a beneficial owner or a prospective purchaser of a
Certificate.
"Prospectus": The Prospectus, dated March 9, 2007, as supplemented
by the Prospectus Supplement.
"Prospectus Supplement": The Prospectus Supplement, dated June 5,
2007, relating to the offering of the Offered Certificates.
"Purchase Option": As defined in Section 3.18(a)(ii).
"Purchase Option Notice": As defined in Section 3.18(a)(iii).
"Purchase Price": With respect to any Mortgage Loan (or REO Loan)
or, if applicable, Loan Pair to be purchased pursuant to (A) Section 6 of the
related Mortgage Loan Purchase Agreement by a Mortgage Loan Seller, (B) Section
3.18(b) through (g), as applicable, or (C) Section 9.01, a price equal to:
(i) the outstanding principal balance of such Mortgage Loan
(or related REO Loan) as of the date of purchase; plus
(ii) all accrued and unpaid interest on such Mortgage Loan (or
the related REO Loan) at the related Mortgage Rate in effect from
time to time (exclusive of Default Interest) to but not including
the Due Date immediately preceding the Determination Date for the
related Distribution Date in which such Purchase Price is included
in the Available Distribution Amount; plus
(iii) all related Servicing Advances that are unreimbursed out
of collections from the Mortgage Loan and accrued and unpaid
interest on related Advances at the Reimbursement Rate, and any
Special Servicing Fees whether paid or then owing allocable to such
Mortgage Loan and all additional Trust Fund expenses in respect of
such Mortgage Loan; plus
(iv) if such Mortgage Loan (or REO Loan) is being purchased by
a Mortgage Loan Seller pursuant to Section 6 of the applicable
Mortgage Loan Purchase Agreement, to the extent not otherwise
included pursuant to clause (iii), all reasonable out-of-pocket
expenses reasonably incurred or estimated to be incurred by the
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 and any expenses of the
Trust Fund relating to such Mortgage Loan (or REO Loan); plus
(v) Liquidation Fees, if any, payable with respect to such
Mortgage Loan.
With respect to any REO Property to be sold pursuant to Section 3.18(c),
"Purchase Price" shall mean the amount calculated in accordance with the
preceding sentence in respect of the related REO Loan. With respect to any REO
Property to be purchased or sold pursuant to Section 3.18(b) that relates to a
Loan Pair, the term "REO Loan" shall mean the REO Loan with respect to both the
related Mortgage Loan and the related Companion Loans.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer": A "qualified institutional buyer"
as defined in Rule 144A under the Act.
"Qualified Insurer": (i) With respect to any Mortgage Loan, REO Loan
or REO Property, an insurance company or security or bonding company qualified
to write the related Insurance Policy in the relevant jurisdiction with a
minimum claims paying ability rating of at least "A-" by S&P and Fitch and "A3"
by Xxxxx'x and (ii) with respect to the fidelity bond and errors and omissions
Insurance Policy required to be maintained pursuant to Section 3.07(c), except
as set forth in Section 3.07(c), an insurance company that has a claims paying
ability (or the obligations which are guaranteed or backed by a company having
such claims paying ability) rated no lower than two ratings below the rating
assigned to the then highest rated outstanding Certificate, but in no event
lower than "A-" by S&P and Fitch and "A3" by Xxxxx'x (or, if not rated by 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 as evidenced in writing.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, whether or not received, not in excess of
the Stated Principal Balance of the deleted Mortgage Loan as of the Due Date in
the calendar month during which the substitution occurs; (ii) have a Mortgage
Rate not less than the Mortgage Rate of the deleted Mortgage Loan; (iii) have
the same Due Date as and grace period no longer than that of the deleted
Mortgage Loan; (iv) accrue interest on the same basis as the deleted Mortgage
Loan (for example, on the basis of a 360 day year consisting of twelve 30 day
months); (v) have a remaining term to stated maturity not greater than, and not
more than two years less than, the remaining term to stated maturity of the
deleted Mortgage Loan; (vi) have a then current loan to value ratio not higher
than that of the deleted Mortgage Loan as of the Closing Date and a current loan
to value ratio not higher than the then current loan to value ratio of the
deleted Mortgage Loan, in each case using the "value" as determined using an MAI
appraisal; (vii) comply (except in a manner that would not be adverse to the
interests of the Certificateholders) as of the date of substitution with all of
the representations and warranties set forth in the applicable Mortgage Loan
Purchase Agreement; (viii) have an environmental report that indicates no
material adverse environmental conditions with respect to the related Mortgaged
Property and which will be delivered as a part of the related Servicing File;
(ix) have a then current debt service coverage ratio of not less than the
original debt service coverage ratio of the deleted Mortgage Loan as of the
Closing Date and a current debt service coverage ratio of not less than the
current debt service coverage ratio of the deleted Mortgage Loan; (x) constitute
a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of
the Code as evidenced by an Opinion of Counsel (provided at the applicable
Mortgage Loan Seller's expense); (xi) not have a maturity date or an
amortization schedule after the date two years prior to the Rated Final
Distribution Date; (xii) have comparable prepayment restrictions to those of the
deleted Mortgage Loan; (xiii) not be substituted for a deleted Mortgage Loan
unless the Trustee has received prior confirmation in writing by each Rating
Agency that such substitution will not result in the withdrawal, downgrade, or
qualification of the rating assigned by the Rating Agency to any Class of
Certificates then rated by the Rating Agency (the cost, if any, of obtaining
such confirmation to be paid by the applicable Mortgage Loan Seller); (xiv) have
been approved by the Directing Certificateholder; (xv) prohibit defeasance
within two years of the Closing Date; (xvi) not be substituted for a deleted
Mortgage Loan if it would result in the termination of the REMIC status of
either of the REMICs established under this Agreement or the imposition of tax
on either of such REMICs other than a tax on income expressly permitted or
contemplated to be imposed by the terms of this Agreement, as determined by an
Opinion of Counsel; (xvii) have an engineering report with respect to the
related Mortgaged Property that will be delivered as a part of the related
Servicing File; (xviii) become a part of the same Loan Group as the deleted
Mortgage Loan; and (xix) be current in the payment of all scheduled payments of
principal and interest then due. In the event that more than one mortgage loan
is substituted for a deleted Mortgage Loan, then the amounts described in clause
(i) shall be determined on the basis of aggregate Stated Principal Balances and
each such proposed Qualified Substitute Mortgage Loan shall individually satisfy
each of the requirements specified in (ii) through (xix); provided, the rates
described in clause (ii) above and the remaining term to stated maturity
referred to in clause (v) above shall be determined on a weighted average basis;
provided further, that no individual Mortgage Rate (net of the Servicing Fee
Rate and the Trustee Fee Rate) shall be lower than the highest fixed
Pass-Through Rate (and not subject to a cap equal to the Weighted Average Net
Mortgage Rate) of any class of Regular Certificates (other than the Class X
Certificates) having a principal balance then outstanding. When a Qualified
Substitute Mortgage Loan is substituted for a deleted Mortgage Loan, the
applicable Mortgage Loan Seller shall certify that the Mortgage Loan meets all
of the requirements of the above definition and shall send such certification to
the Trustee and the Directing Certificateholders.
"Rated Final Distribution Date": As to each Class of Certificates,
February 12, 2049.
"Rating Agency": Each of Xxxxx'x and S&P or their successors in
interest. If no such rating agency nor any successor thereof remains in
existence, "Rating Agency" shall be deemed to refer to such nationally
recognized statistical rating agency or other comparable Person designated by
the Depositor, notice of which designation shall be given to the Trustee, the
Paying Agent and the Master Servicers, and specific ratings of Xxxxx'x and S&P
herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registrar Office": As defined in Section 5.02(a).
"Regular Certificate": Any of the Class A, Class A-M, Class A-J,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class P, Class Q, Class NR and Class X Certificates.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. xx.xx. 229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
"Regulation 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 and/or the
Paying Agent 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 Paying Agent as custodian for
the Depository.
"Regulation S Investor": With respect to a transferee of a
Regulation S Book-Entry Certificate, a transferee that acquires such Certificate
pursuant to Regulation S.
"Regulation S Transfer Certificate": A certificate substantially in
the form of Exhibit I-1 or Exhibit I-2 hereto, as applicable.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the Prime Rate.
"Related Certificates," "Related Uncertificated Lower-Tier
Interests" and "Related Components of Class X Certificates": For each of the
following Classes of Certificates, the related Class of Uncertificated
Lower-Tier Interests and the related Components of Class X Certificates; for the
following Components of the Class X Certificates, the related Class of
Uncertificated Lower-Tier Interests and the related Class of Certificates set
forth below; and for the following Classes of Uncertificated Lower-Tier
Interests, the related Components of the Class X Certificates and the related
Class of Certificates set forth below:
Related Uncertificated Related Components of
Related Certificate Lower-Tier Interest Class X Certificates
---------------------------------- --------------------------------------- ----------------------
Class A-1 Certificate Class LA-1 Uncertificated Interest XA-1
Class A-1A Certificate Class LA-1A Uncertificated Interest XA-1A
Class A-2 Certificate Class LA-2 Uncertificated Interest XA-2
Class A-3 Certificates Class LA-3 Uncertificated Interest XA-3
Class A-4 Certificate Class LA-4 Uncertificated Interest XA-4
Class A-SB Certificate Class LA-SB Uncertificated Interest XA-SB
Class A-M Certificate Class LA-M Uncertificated Interest XA-M
Class A-J Certificate Class LA-J Uncertificated Interest XA-J
Class B Certificate Class LB Uncertificated Interest XB
Class C Certificate Class LC Uncertificated Interest XC
Class D Certificate Class LD Uncertificated Interest XD
Class E Certificate Class LE Uncertificated Interest XE
Class F Certificate Class LF Uncertificated Interest XF
Class G Certificate Class LG Uncertificated Interest XG
Class H Certificate Class LH Uncertificated Interest XH
Class J Certificate Class LJ Uncertificated Interest XJ
Class K Certificate Class LK Uncertificated Interest XK
Class L Certificate Class LL Uncertificated Interest XL
Class M Certificate Class LM Uncertificated Interest XM
Class N Certificate Class LN Uncertificated Interest XN
Class P Certificate Class LP Uncertificated Interest XP
Class Q Certificate Class LQ Uncertificated Interest XQ
Class NR Certificate Class LNR Uncertificated Interest XNR
"Relevant Servicing Criteria" means the Servicing Criteria
applicable to a specific party, as set forth on Exhibit X attached hereto. For
clarification purposes, multiple parties can have responsibility for the same
Relevant Servicing Criteria. With respect to a Servicing Function Participant
engaged by the Trustee, the Paying Agent, the applicable Master Servicer or the
Special Servicer, the term "Relevant Servicing Criteria" may refer to a portion
of the Relevant Servicing Criteria applicable to the applicable Master Servicer,
the Special Servicer, the Trustee and/or the Paying Agent.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Administrator": The Paying Agent or any REMIC administrator
appointed pursuant to Section 10.04.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": With respect to each of the Mortgage Loans, a
segregated custodial account or accounts created and maintained by the Special
Servicer pursuant to Section 3.16 on behalf of the Trustee in trust for the
Certificateholders, which shall be entitled "LNR Partners, Inc., or the
applicable successor Special Servicer, as Special Servicer, for the benefit of
LaSalle Bank National Association, as trustee, in trust for registered Holders
of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-CIBC19,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC19, 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 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 or the Trustee, as applicable,
in respect of the predecessor Mortgage Loan or Companion Loan as of the date of
the related REO Acquisition, including, without limitation, any unpaid Special
Servicing Fees and Servicing Fees, additional Trust Fund expenses and any
unreimbursed Advances, together with any interest accrued and payable to the
applicable Master Servicer or the Trustee, as applicable, in respect of such
Advances in accordance with Section 3.03(d) or Section 4.03(d), shall continue
to be payable or reimbursable to the applicable Master Servicer or the Trustee,
as applicable, in respect of an REO Loan. In addition, Unliquidated Advances and
Nonrecoverable Advances with respect to such REO Loan, in each case, that were
paid from collections on the Mortgage Loans and resulted in principal
distributed to the Certificateholders being reduced as a result of the first
proviso in the definition of "Principal Distribution Amount", "Loan Group 1
Principal Distribution Amount" or "Loan Group 2 Principal Distribution Amount"
shall be deemed outstanding until recovered. Collections in respect of each REO
Loan (exclusive of the amounts to be applied to the payment of, or to be
reimbursed to the 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; second, as a recovery of
Unliquidated Advances with respect to such REO Loan that relate to Servicing
Advances and were paid from collections on the Mortgage Loans and resulted in
principal distributed to the Certificateholders being reduced as a result of the
first proviso in the definition of "Principal Distribution Amount", "Loan Group
1 Principal Distribution Amount" or "Loan Group 2 Principal Distribution
Amount"; third, as a recovery of principal of such REO Loan to the extent of its
entire unpaid principal balance; fourth, as a recovery of Nonrecoverable
Advances, with respect to such REO Loan, that relate to Advances and were paid
from collections on the Mortgage Loans and resulted in principal distributed to
the Certificateholders being reduced as a result of the first proviso in the
definition of "Principal Distribution Amount", "Loan Group 1 Principal
Distribution Amount" or "Loan Group 2 Principal Distribution Amount"; and fifth,
in accordance with the Servicing Standards, as a recovery of any other amounts
due and owing in respect of such REO Loan, including, without limitation, (i)
Penalty Charges, and (ii) Yield Maintenance Charges, in that order; provided,
that if the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and 000 Xxxxxxxxx Xxxxxx
Companion Loans comprising the 000 Xxxxxxxxx Xxxxxx Whole Loan become REO Loans,
the treatment of the foregoing amounts with respect to the 000 Xxxxxxxxx Xxxxxx
Whole Loan shall be subject to the terms of the 000 Xxxxxxxxx Xxxxxx
Intercreditor Agreement and the 0000-XXX00 Xxxxxxx Agreement; and provided,
further that if the AmeriCold Portfolio Mortgage Loan and the AmeriCold
Portfolio Companion Loans comprising the AmeriCold Portfolio Whole Loan become
REO Loans, the treatment of the foregoing amounts with respect to the AmeriCold
Portfolio Whole Loan shall be subject to the terms of the AmeriCold Portfolio
Intercreditor Agreement and the 2007-CIBC18 Pooling Agreement, in that order.
"REO Loan Accrual Period": With respect to any REO Loan and any Due
Date therefor, the one-month period immediately preceding such Due Date.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of, and in the name of, the Trustee or a nominee thereof for
the benefit of the Certificateholders (and the related Companion Holder, subject
to the related Intercreditor Agreement, with respect to a Mortgaged Property
securing a Loan Pair) and the Trustee (as holder of the Uncertificated
Lower-Tier Interests) (and also including, if applicable, the Trust Fund's
beneficial interest in the 000 Xxxxxxxxx Xxxxxx Mortgaged Property acquired by
the 000 Xxxxxxxxx Xxxxxx Special Servicer on behalf of, and in the name of, the
000 Xxxxxxxxx Xxxxxx Trustee or a nominee thereof for the benefit of the
certificateholders under the 000 Xxxxxxxxx Xxxxxx Trust) (and also including, if
applicable, the Trust Fund's beneficial interest in the AmeriCold Portfolio
Mortgaged Property acquired by the AmeriCold Portfolio Special Servicer on
behalf of, and in the name of, the AmeriCold Portfolio Trustee or a nominee
thereof for the benefit of the certificateholders under the AmeriCold Portfolio
Trust) through foreclosure, acceptance of a deed in lieu of foreclosure or
otherwise in accordance with applicable law in connection with the default or
imminent default of a Mortgage Loan. References herein to the Special Servicer
acquiring, maintaining, managing, inspecting, insuring, selling or reporting or
to Appraisal Reductions and Final Recovery Determinations with respect to an
"REO Property", shall not include the Trust Fund's beneficial interest in the
000 Xxxxxxxxx Xxxxxx Mortgaged Property and the AmeriCold Portfolio Mortgaged
Property. For the avoidance of doubt, REO Property, to the extent allocable to a
Companion Loan, shall not be an asset of the Trust Fund, the Lower-Tier REMIC or
the Upper-Tier REMIC.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property.
"Reportable Event": As defined in Section 11.07.
"Reporting Servicer": Each Master Servicer, the Special Servicer,
the Trustee, the Paying Agent or any Servicing Function Participant engaged by
such parties as the case may be.
"Request for Release": A release signed by a Servicing Officer of
the applicable Master Servicer or the Special Servicer, as applicable, in the
form of Exhibit E attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
Certificate issued, authenticated and delivered hereunder.
"Responsible Officer": When used with respect to each of the initial
Trustee or the Paying Agent, any Vice President, Assistant Vice-President,
Assistant Secretary or corporate trust officer in the corporate trust department
of the Trustee and the Paying Agent, and with respect to any successor Trustee
or the Paying Agent, any officer or assistant officer in the corporate trust
department of the successor Trustee or Paying Agent or any other officer of the
successor Trustee or Paying Agent customarily performing functions similar to
those performed by any of the above designated officers to whom a particular
matter is referred by the Trustee or the Paying Agent because of such officer's
knowledge of and familiarity with the particular subject.
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which Certificates are first
offered to Persons other than the Initial Purchaser and any other distributor
(as such term is defined in Regulation S) of the Certificates and (b) the
Closing Date.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Book-Entry Certificate": With respect to any Class of
Certificates offered and sold in reliance on Rule 144A, a single, permanent
Book-Entry Certificate, in definitive, fully registered form without interest
coupons.
"S&P": Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc., and its successors in interest. If neither S&P nor any
successor remains in existence, "S&P" shall be deemed to refer to such other
nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Paying Agent, the Master 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).
"Scheduled Principal Distribution Amount": With respect to any
Distribution Date and the Mortgage Loans, the aggregate of the principal
portions of (a) all Monthly Payments (excluding Balloon Payments) due in respect
of such Mortgage Loans during or, if and to the extent not previously received
or advanced pursuant to Section 4.03 in respect of a preceding Distribution
Date, prior to, the related Due Period, and all Assumed Scheduled Payments for
the related Due Period, in each case to the extent either (i) paid by the
Mortgagor as of the Determination Date (or, with respect to each Mortgage Loan
with a Due Date occurring or a grace period ending after the related
Determination Date, the related Due Date or last day of such grace period, as
applicable, to the extent received by the applicable 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 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.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses (including attorneys' fees and expenses and fees
of real estate brokers) incurred by the applicable Master Servicer, the Special
Servicer or the Trustee, as applicable, in connection with the servicing and
administering of (a) a Mortgage Loan (other than the 000 Xxxxxxxxx Xxxxxx
Mortgage Loan and the AmeriCold Portfolio Mortgage Loan) (and in the case of an
AB Mortgage Loan, the related Companion Loan) 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 X 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 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the
AmeriCold Portfolio Mortgage Loan, solely for purposes of calculating the
Administrative Cost Rate under this Agreement and not for calculating the
Servicing Fee), a rate equal to the per annum rate set forth on the Mortgage
Loan Schedule under the heading "Servicing Fee Rate," in each case computed on
the basis of the Stated Principal Balance of the related Mortgage Loan. With
respect to each Companion Loan, the rate payable to the 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 000 Xxxxxxxxx Xxxxxx Mortgage
Loan is 0.01% per annum (and the 000 Xxxxxxxxx Xxxxxx Master Servicer will be
entitled to a primary servicing fee with respect to the 000 Xxxxxxxxx Xxxxxx
Mortgage Loan based on a rate of 0.01% per annum), and for the purposes of
calculating the Administrative Cost Rate under this Agreement, the "Servicing
Fee Rate" with respect to the 000 Xxxxxxxxx Xxxxxx Mortgage Loan is 0.02% per
annum and with respect to the AmeriCold Portfolio Mortgage Loan is 0.01% per
annum (and the AmeriCold Portfolio Primary Servicer will be entitled to a
primary servicing fee with respect to the AmeriCold Portfolio Mortgage Loan
based on a rate of 0.01% per annum), and for the purposes of calculating the
Administrative Cost Rate under this Agreement, the "Servicing Fee Rate" with
respect to the AmeriCold Portfolio Mortgage Loan is 0.02% per annum.
"Servicing File": Shall mean a photocopy of all items required to be
included in the Mortgage File, together with each of the following, to the
extent such items were actually delivered to the related Mortgage Loan Seller
with respect to a Mortgage Loan and (to the extent that the identified documents
existed on or before the Closing Date and the applicable reference to Servicing
File relates to any period after the Closing Date) delivered by the related
Mortgage Loan Seller to the applicable Master Servicer: (i) a copy of any
engineering reports or property condition reports; (ii) other than with respect
to a hotel property (except with respect to tenanted commercial space within a
hotel property), copies of a rent roll and, for any office, retail, industrial
or warehouse property, a copy of all leases and estoppels and subordination and
non-disturbance agreements delivered to the Mortgage Loan Seller; (iii) copies
of related financial statements or operating statements; (iv) all legal opinions
(excluding attorney-client communications between any Mortgage Loan Seller and
its counsel that are privileged communications or constitute legal or other due
diligence analyses), Mortgagor's Certificates and certificates of hazard
insurance and/or hazard insurance policies or other applicable insurance
policies, if any, delivered in connection with the closing of the Mortgage Loan;
(v) a copy of the Appraisal for the related Mortgaged Property(ies); (vi) the
documents that were delivered by or on behalf of the Mortgagor, which documents
were required to be delivered in connection with the closing of such Mortgage
Loan; (vii) for any Mortgage Loan that the related Mortgaged Property is leased
to a single tenant, a copy of the lease; and (viii) a copy of all environmental
reports that were received by the applicable Mortgage Loan Seller relating to
the relevant Mortgaged Property.
"Servicing Function Participant": Any Additional Servicer,
Sub-Servicer, Subcontractor or any other Person, other than any Master Servicer,
the Special Servicer, the Trustee and the Paying Agent, that is performing
activities that address the Servicing Criteria, unless (i) such Person's
activities relate only to 5% or less of the Mortgage Loans or (ii) the Depositor
reasonably determines that a Master Servicer, the Special Servicer, the Trustee
or the Paying Agent may, for the purposes of the Exchange Act reporting
requirements pursuant to applicable Commission guidance, take responsibility for
the assessment of compliance with the Servicing Criteria of such Person. The
Servicing Function Participants as of the Closing Date are listed on Exhibit DD
hereto. Exhibit DD shall be updated and provided to the Depositor and the Paying
Agent in accordance with Section 11.10(c).
"Servicing Officer": Any officer and/or employee of the applicable
Master Servicer, the Special Servicer or any Additional Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans (and in
the case of an AB Mortgage Loan, the related Companion Loan), whose name and
specimen signature appear on a list of servicing officers furnished by the
applicable Master Servicer, the Special Servicer or any Additional Servicer to
the Paying Agent, the Trustee and the Depositor on the Closing Date as such list
may be amended from time to time thereafter.
"Servicing-Released Bid": As defined in Section 7.01(c).
"Servicing-Retained Bid": As defined in Section 7.01(c).
"Servicing Standards": With respect to the Master Servicer No. 1,
the Master Servicer No. 1 Servicing Standard, and with respect to the Master
Servicer No. 2 and the Special Servicer, the General Servicing Standards.
"Servicing Transfer Event": With respect to any Mortgage Loan (other
than the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the AmeriCold Portfolio Mortgage
Loan) or related Companion Loan, the occurrence of any of the following events:
(i) with respect to a Mortgage Loan or Companion Loan that is
not a Balloon Mortgage Loan, (a) a payment default shall have
occurred at its original Maturity Date, or (b) if the original
Maturity Date of such Mortgage Loan or Companion Loan has been
extended as provided herein, a payment default shall have occurred
at such extended Maturity Date; or
(ii) in the case of a Balloon Payment, such payment is
delinquent and the related Mortgagor has not provided the applicable
Master Servicer on or prior to the related Maturity Date (or, with
the consent of the Directing Certificateholder, the 60th day after
the related Maturity Date with respect to a Mortgage Loan where the
Mortgagor has continued to make its Assumed Scheduled Payments and
is diligently pursuing refinancing) with a bona fide written
commitment for refinancing, reasonably satisfactory in form and
substance to such Master Servicer, which provides that such
refinancing will occur within 120 days after the Maturity Date,
provided that the Mortgage Loan will become a Specially Serviced
Mortgage Loan immediately if the related Mortgagor fails to
diligently pursue such financing or to pay any Assumed Scheduled
Payment on the related Due Date (subject to any applicable grace
period) at any time before the refinancing or, if such refinancing
does not occur within such 120 day period, the related Mortgage Loan
will become a Specially Serviced Mortgage Loan at the end of such
120 day period (or at the end of any shorter period beyond the date
on which that Balloon Payment was due within which the refinancing
is scheduled to occur); or
(iii) any Monthly Payment (other than a Balloon Payment) is
more than 60 days delinquent (unless, in the case of each AB
Mortgage Loan or Mortgage Loan with mezzanine debt, prior to such
Monthly Payment becoming more than 60 days delinquent the holder of
the related Companion Loan or mezzanine debt cures such delinquency,
subject to the terms and provisions of the related Intercreditor
Agreement; or
(iv) the applicable Master Servicer or the Special Servicer
(in the case of the Special Servicer, with the consent of the
Directing Certificateholder), as the case may be, makes a judgment
that a payment default is imminent and is not likely to be cured by
the related Mortgagor within 60 days; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency
or similar law, or the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up
or liquidation of its affairs, is entered against the related
Mortgagor; provided, that if such decree or order is discharged or
stayed within 60 days of being entered, or if, as to a bankruptcy,
the automatic stay is lifted within 60 days of a filing for relief
or the case is dismissed, upon such discharge, stay, lifting or
dismissal such Mortgage Loan or Companion Loan shall no longer be a
Specially Serviced Mortgage Loan (and no Special Servicing Fees,
Workout Fees or Liquidation Fees will be payable with respect
thereto and any such fees actually paid shall be reimbursed by the
Special Servicer); or
(vi) the related Mortgagor shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to such Mortgagor or of or
relating to all or substantially all of its property; or
(vii) the related Mortgagor shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(viii) a default of which the applicable Master Servicer or
the Special Servicer, as applicable, has notice (other than a
failure by such Mortgagor to pay principal or interest) and which
the 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, with
respect to each AB Mortgage Loan, the interests of the related
Companion Holder and the Certificateholders, as a collective whole),
if applicable, has occurred and remained unremedied for the
applicable grace period specified in the related Mortgage Loan or
Companion Loan documents, other than the failure to maintain
terrorism insurance if such failure constitutes an Acceptable
Insurance Default (or if no grace period is specified for those
defaults which are capable of cure, 60 days); or
(ix) the applicable Master Servicer or the Special Servicer
has received notice of the foreclosure or proposed foreclosure of
any lien other than the Mortgage on the related Mortgaged Property;
or
(x) the 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 (or, with respect to each
AB Mortgage Loan, the interests of the related Companion Holder and
the Certificateholders, as a collective whole), and (iii) the
default will continue unremedied for the applicable cure period
under the terms of the Mortgage Loan or Companion Loan or, if no
cure period is specified and the default is capable of being cured,
for 30 days (provided that such 30-day grace period does not apply
to a default that gives rise to immediate acceleration without
application of a grace period under the terms of the Mortgage Loan
or Companion Loan); provided that any determination that a Servicing
Transfer Event has occurred under this clause (x) with respect to
any Mortgage Loan or Companion Loan solely by reason of the failure
(or imminent failure) of the related Mortgagor to maintain or cause
to be maintained insurance coverage against damages or losses
arising from acts of terrorism may only be made by the Special
Servicer (with the consent of the Directing Certificateholder);
provided, if any Companion Loan becomes a Specially Serviced Mortgage Loan, the
related AB Mortgage Loan, shall also become a Specially Serviced Mortgage Loan.
If any AB Mortgage Loan becomes a Specially Serviced Mortgage Loan, the related
Companion Loan shall become a Specially Serviced Mortgage Loan. If any 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 000 Xxxxxxxxx Xxxxxx Mortgage Loan, the
occurrence of a "Servicing Transfer Event" shall be as defined in the 0000-XXX00
Xxxxxxx Agreement.
With respect to the AmeriCold Portfolio Mortgage Loan, the
occurrence of a "Servicing Transfer Event" shall be as defined in the
2007-CIBC18 Pooling Agreement.
"Similar Law": As defined in Section 5.02(c).
"Sole Certificateholder": Any Certificate Owner of a book-entry
Certificate or a Holder of a definitive Certificate holding 100% of the Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P, Class Q
and Class NR Certificates or, with respect to such Classes of Certificates an
assignment of the voting rights thereof; provided, however, that the Certificate
Balances of the Class A-1, Class A-2, Class A-3, Class A-4, Class A -1A, Class
A-SB, Class A-M, Class A-J, Class B, Class C, Class D and Class E Certificates
and the Notional Amount of the Class X Certificates have been retired.
"Special Servicer": With respect to each of the Mortgage Loans, LNR
Partners, Inc., a Florida 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 the 000 Xxxxxxxxx Xxxxxx Mortgage Loan
and the AmeriCold Portfolio Mortgage Loan), the fee payable to the Special
Servicer pursuant to the first paragraph of Section 3.11(b).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan (other than the 000 Xxxxxxxxx Xxxxxx
Mortgage Loan and the AmeriCold Portfolio Mortgage Loan), 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 under the
related Intercreditor Agreement) in the same manner as interest is calculated on
the Specially Serviced Mortgage Loans.
"Specially Serviced Mortgage Loan": As defined in Section 3.01(a).
"Startup Day": The day designated as such in Section 10.01(b).
"Stated Principal Balance": With respect to any Mortgage Loan, as of
any date of determination, an amount equal to (x) the Cut-off Date Principal
Balance of such Mortgage Loan (or in the case of a Qualified Substitute Mortgage
Loan, the unpaid principal balance of such Mortgage Loan after application of
all scheduled payments of principal and interest due during or prior to the
month of substitution, whether or not received), plus (y) any Mortgage Deferred
Interest added to the principal balance of such Mortgage Loan on or before the
end of the immediately preceding Due Period minus (z) the sum of:
(i) the principal portion of each Monthly Payment due on such
Mortgage Loan after the Cut-off Date (or in the case of a Qualified
Substitute Mortgage Loan, the Due Date in the related month of
substitution), to the extent received from the Mortgagor or advanced
by the applicable Master Servicer;
(ii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-off Date (or in the case of a Qualified
Substitute Mortgage Loan, the Due Date in the related month of
substitution);
(iii) the principal portion of all Insurance and Condemnation
Proceeds (to the extent allocable to principal on the related
Mortgage Loan) and Liquidation Proceeds received with respect to
such Mortgage Loan after the Cut-off Date (or in the case of a
Qualified Substitute Mortgage Loan, the Due Date in the related
month of substitution); and
(iv) any reduction in the outstanding principal balance of
such Mortgage Loan resulting from a Deficient Valuation or a
modification of such Mortgage Loan pursuant to the terms and
provisions of this Agreement that occurred prior to the end of the
Due Period for the most recent Distribution Date.
With respect to any REO Loan that is a successor to a Mortgage Loan,
as of any date of determination, an amount equal to (x) the Stated Principal
Balance of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect
to such REO Loan; and
(ii) the principal portion of all Insurance and Condemnation
Proceeds (to the extent allocable to principal on the related
Mortgage Loan), Liquidation Proceeds and REO Revenues received with
respect to such REO Loan.
A Mortgage Loan or an REO Loan that is a successor to a Mortgage
Loan shall be deemed to be part of the Trust Fund and to have an outstanding
Stated Principal Balance until the Distribution Date on which the payments or
other proceeds, if any, received in connection with a Liquidation Event in
respect thereof are to be (or, if no such payments or other proceeds are
received in connection with such Liquidation Event, would have been) distributed
to Certificateholders.
With respect to any Companion Loan on any date of determination, the
Stated Principal Balance shall equal the unpaid principal balance of such
Companion Loan as of such date.
"Statement to Certificateholders": As defined in Section 4.02(a).
"Subcontractor": Any vendor, subcontractor or other Person that is
not responsible for the overall servicing (as "servicing" is commonly understood
by participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Mortgage Loans under the direction or authority of any Master
Servicer, the Special Servicer, an Additional Servicer or a Sub-Servicer.
"Subordinate Certificate": Any Class A-M, Class A-J, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class P, Class Q or Class NR Certificate.
"Sub-Servicer": Any Person that services Mortgage Loans on behalf of
any Master Servicer, the Special Servicer or an Additional Servicer and is
responsible for the performance (whether directly or through Sub-Servicers or
Subcontractors) of a substantial portion of the material servicing functions
required to be performed by any Master Servicer, the Special Servicer or an
Additional Servicer under this Agreement, with respect to some or all of the
Mortgage Loans, that are identified in Item 1122(d) of Regulation AB.
"Sub-Servicing Agreement": The written contract between the
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.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(b) hereof, an amount equal to the excess, if any, of
the Purchase Price of the Mortgage Loan being replaced calculated as of the date
of substitution over the Stated Principal Balance of the related Qualified
Substitute Mortgage Loan after application of all scheduled payments of
principal and interest due during or prior to the month of substitution. In the
event that one or more Qualified Substitute Mortgage Loans are substituted (at
the same time by the same Mortgage Loan Seller) for one or more deleted Mortgage
Loans, the Substitution Shortfall Amount shall be determined as provided in the
preceding sentence on the basis of the aggregate Purchase Prices of the Mortgage
Loan or Mortgage Loans being replaced and the aggregate Stated Principal
Balances of the related Qualified Substitute Mortgage Loans.
"Successful Bidder": As defined in Section 7.01(c).
"Surviving Entity": As defined in Section 6.02(b).
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC
due to its classification as a REMIC under the REMIC Provisions, together with
any and all other information, reports or returns that may be required to be
furnished to the Certificateholders or filed with the Internal Revenue Service
or any other governmental taxing authority under any applicable provisions of
federal tax law or Applicable State and Local Tax Law.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit": As defined in Section 5.02(d).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(d).
"Trust": The trust created hereby and to be administered hereunder.
The Trust shall be named: "X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Trust 2007-CIBC19".
"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; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date (or with respect to a Qualified
Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any
REO Property (to the extent of the Trust Fund's interest therein) or the Trust
Fund's beneficial interest in the Mortgaged Property securing the 000 Xxxxxxxxx
Xxxxxx Whole Loan acquired under the 0000-XXX00 Xxxxxxx Agreement and the
AmeriCold Portfolio Whole Loan acquired under the 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 Upper-Tier Distribution
Account, the Interest Reserve Account, the Gain-on-Sale Reserve Account (to the
extent of the Trust Fund's interest in such Gain-on-Sale Reserve Account) and
any REO Account (to the extent of the Trust Fund's interest in such REO
Account), including any reinvestment income, as applicable; (ix) any
Environmental Indemnity Agreements (to the extent of the Trust Fund's interest
therein); (x) the rights and remedies of the Depositor under each Mortgage Loan
Purchase Agreement (to the extent transferred to the Trustee); (xi) the
Uncertificated Lower-Tier Interests; and (xii) 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": LaSalle Bank National Association, a national banking
association, in its capacity as trustee and its successors in interest, or any
successor Trustee appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(b).
"Trustee Fee": The fee to be paid to the Trustee as compensation for
the Trustee's activities under this Agreement. The Trustee Fee includes the
Paying Agent fee. No portion of the Trustee Fee shall be calculated by reference
to any Companion Loan or the principal balance of any Companion Loan.
"Trustee Fee Rate": A rate equal to 0.00063% per annum computed on
the basis of the Stated Principal Balance of the related Mortgage Loan (and in
the same manner as interest is calculated on the related Mortgage Loan) as of
the preceding Distribution Date. The Trustee Fee Rate includes the Paying Agent
fee rate.
"Trustee's Direction": As defined in Section 7.01(a).
"UCC": The Uniform Commercial Code, as enacted in each applicable
state.
"UCC Financing Statement": A financing statement prepared and filed
pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Lower-Tier Interests": Any of the Class XX-0, Xxxxx
XX-0X, Xxxxx XX-0, Class LA-3, Class LA-4, Class LA-SB, Class LA-M, Class LA-J,
Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH, Class LJ,
Class LK, Class LL, Class LM, Class LN, Class LP, Class LQ and Class LNR
Uncertificated Interests.
"Underwriters": X.X. Xxxxxx Securities Inc., CIBC World Markets
Corp. and Bear Xxxxxxx & Co. Inc.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person that made the
Advance hereunder, on the one hand, and the Trust Fund, on the other, as part of
a Workout-Delayed Reimbursement Amount pursuant to subsections (iii) and (iv) of
Section 3.05(a) but that has not been recovered from the Mortgagor or otherwise
from collections on or the proceeds of the Mortgage Loan or REO Property in
respect of which the Advance was made.
"Unscheduled Principal Distribution Amount": With respect to any
Distribution Date and the Mortgage Loans, the aggregate of (a) all Principal
Prepayments received on such Mortgage Loans on or prior to the Determination
Date and (b) the principal portions of all Liquidation Proceeds, Insurance and
Condemnation Proceeds (net of Special Servicing Fees, Liquidation Fees, accrued
interest on Advances and other additional Trust Fund expenses incurred in
connection with the related Mortgage Loan) and, if applicable, REO Revenues
received with respect to such Mortgage Loans and any REO Loans on or prior to
the related Determination Date, but in each case only to the extent that such
principal portion represents a recovery of principal for which no advance was
previously made pursuant to Section 4.03 in respect of a preceding Distribution
Date.
"Upper-Tier Distribution Account": The segregated account or
accounts (or a subaccount of the Distribution Account) created and maintained by
the Paying Agent pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "LaSalle Bank National Association,
as Paying Agent, in trust for the registered Holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Trust 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19, Upper-Tier Distribution Account."
Any such account or accounts shall be an Eligible Account (or a subaccount of
the Distribution Account).
"Upper-Tier REMIC": One of the two separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"U.S. Dollars": Lawful money of the United States of America.
"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).
"Veteran's Parkway 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 Veteran's Parkway AB Mortgage Loan.
"Veteran's Parkway AB Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as Mortgage Loan No. 123.
"Veteran's Parkway Intercreditor Agreement": That certain
Intercreditor Agreement Among Note Holders, dated as of April 12, 2007, by and
between JPMorgan Chase Bank, N.A., as the A Note Holder, and Mezz Cap Finance,
LLC, as the B Note Holder. The Veteran's Parkway Intercreditor Agreement relates
to the Veteran's Parkway AB Mortgage Loan.
"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) % 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 % and
a fraction, the numerator of which is equal to the aggregate Certificate Balance
of such Class, in each case, determined as of the Distribution Date immediately
preceding such time, and the denominator of which is equal to the aggregate
Certificate Balance of the Regular Certificates (other than the Class X
Certificates), each determined as of the Distribution Date immediately preceding
such time. None of the Class R Certificates and the Class LR Certificates will
be entitled to any Voting Rights. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective
Certificates. Appraisal Reductions shall not result in a change in the Class
Voting Rights of any Class of Regular Certificates.
"Weighted Average Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the applicable Net Mortgage Rates of
the Mortgage Loans as of the first day of the related Due Period, weighted on
the basis of their respective Stated Principal Balances as of the first day of
such Due Period (after giving effect to any payments received during any
applicable grace period).
"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 000 Xxxxxxxxx
Xxxxxx Mortgage Loan and the AmeriCold Portfolio Mortgage Loan).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan, a
fee of 1.00% of each collection (other than Penalty Charges) of interest and
principal (other than any amount for which a Liquidation Fee would be paid),
including (i) Monthly Payments, (ii) Balloon Payments and (iii) payments (other
than those included in clause (i) or (ii) of this definition) at maturity,
received on each Corrected Mortgage Loan for so long as it remains a Corrected
Mortgage Loan.
"Yield Maintenance Charge": With respect to any Mortgage Loan or REO
Loan, the yield maintenance charge or prepayment premium set forth in the
related Mortgage Loan documents; provided that no amounts shall be considered
Yield Maintenance Charges until there has been a full recovery of all principal,
interest and other amounts due under the related Mortgage Loan.
Section 1.02 Certain Calculations. Unless otherwise specified
herein, for purposes of determining amounts with respect to the Certificates and
the rights and obligations of the parties hereto, the following provisions shall
apply:
(i) All calculations of interest (other than as provided in
the Mortgage Loan documents) provided for herein shall be made on
the basis of a 360-day year consisting of twelve 30-day months.
(ii) Any Mortgage Loan payment is deemed to be received on the
date such payment is actually received by the applicable Master
Servicer, the Special Servicer, the Paying Agent or the Trustee;
provided, however, that for purposes of calculating distributions on
the Certificates, Principal Prepayments with respect to any Mortgage
Loan are deemed to be received on the date they are applied in
accordance with the Servicing Standards consistent with the terms of
the related Mortgage Note and Mortgage to reduce the outstanding
principal balance of such Mortgage Loan on which interest accrues.
(iii) Any reference to the Certificate Balance of any Class of
Certificates (other than the Class X and Residual Certificates) on
or as of a Distribution Date shall refer to the Certificate Balance
of such Class of Certificates (other than the Class X and Residual
Certificates) on such Distribution Date after giving effect to (a)
any distributions made on such Distribution Date pursuant to Section
4.01(a), (b) any Collateral Support Deficit allocated to such Class
of Certificates (other than the Class X and Residual Certificates)
on the immediately preceding Distribution Date pursuant to Section
4.04, (c) the addition of any Certificate Deferred Interest
allocated to such Class of Certificates (other than the Class X and
Residual Certificates) and added to such Certificate Balance
pursuant to Section 4.06(b) and (d) any recoveries on the related
Mortgage Loan of Nonrecoverable Advances (plus interest thereon)
that were previously reimbursed from principal collections on the
Mortgage Loans that resulted in a reduction of the Principal
Distribution Amount, Loan Group 1 Principal Distribution Amount or
Loan Group 2 Principal Distribution Amount, which recoveries are
allocated to such Class of Certificates and added to the Certificate
Balance pursuant to Section 4.04(a).
[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 Uncertificated Lower-Tier
Interests) all the right, title and interest of the Depositor, including any
security interest therein for the benefit of the Depositor, in, to and under (i)
the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) Sections 1, 2,
3, 4, 5, 6(a) (excluding clause (viii) of Section 6(a)), 6(c), 6(d), 6(e), 6(f),
6(g), 10, 11, 13, 14, 15, 17, 18 and 19 of each of the Mortgage Loan Purchase
Agreements, (iii) the Intercreditor Agreements, and (iv) all other assets
included or to be included in the Trust Fund. Such assignment includes all
interest and principal received or receivable on or with respect to the Mortgage
Loans (other than (i) payments of principal and interest due and payable on the
Mortgage Loans on or before the Cut-off Date; (ii) prepayments of principal
collected on or before the Cut-off Date; and (iii) with respect to those
Mortgage Loans that were closed in May 2007 but have their first Due Date in
July 2007, any interest amounts relating to the period prior to the Cut-off
Date). The transfer of the Mortgage Loans and the related rights and property
accomplished hereby is absolute and, notwithstanding Section 12.07, is intended
by the parties to constitute a sale. In connection with the assignment to the
Trustee of Sections 1, 2, 3, 4, 5, 6(a) (excluding clause (viii) of Section
6(a)), 6(c), 6(d), 6(e), 6(f), 6(g), 10, 11, 13, 14, 15, 17, 18 and 19 of each
of the Mortgage Loan Purchase Agreements, it is intended that the Trustee get
the benefit of Sections 10, 11 and 14 thereof in connection with any exercise of
rights under the assigned Sections, and the Depositor shall use its best efforts
to make available to the Trustee the benefits of Sections 10, 11 and 14 in
connection therewith.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each of the Mortgage Loan Sellers pursuant to the
applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby, on or before the Closing Date, the Mortgage File for each
Mortgage Loan so assigned, with copies to the 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, if a duplicate original or a
photocopy of such non-delivered document or instrument (certified by the
applicable public filing or recording office, the applicable title insurance
company or the applicable Mortgage Loan Seller to be a true and complete copy of
the original thereof submitted for filing or recording) is delivered to the
Trustee or a Custodian appointed thereby on or before the Closing Date, and
either the original of such non-delivered document or instrument, or a photocopy
thereof (certified by the appropriate county recorder's office, in the case of
the documents and/or instruments referred to in clause (ii) of the definition of
"Mortgage File," to be a true and complete copy of the original thereof
submitted for recording), with evidence of filing or recording thereon, is
delivered to the Trustee or such Custodian within 180 days of the Closing Date
(or within such longer period, not to exceed 18 months, after the Closing Date
as the Trustee may consent to, which consent shall not be unreasonably withheld
so long as the applicable Mortgage Loan Seller is, as certified in writing to
the Trustee no less often than every 90 days, attempting in good faith to obtain
from the appropriate public filing office or county recorder's office such
original or photocopy). If the applicable Mortgage Loan Seller cannot deliver,
or cause to be delivered, as to any Mortgage Loan, any of the documents and/or
instruments referred to in clauses (ii), (iv), (viii), (xi) and (xii) of the
definition of "Mortgage File," with evidence of filing or recording thereon, for
any other reason, including, without limitation, that such non-delivered
document or instrument has been lost or destroyed, the delivery requirements of
the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall
be deemed to have been satisfied as to such non-delivered document or
instrument, and such non-delivered document or instrument shall be deemed to
have been included in the Mortgage File, if a photocopy of such non-delivered
document or instrument (with evidence of filing or recording thereon and
certified in the case of the documents and/or instruments referred to in clause
(ii) of the definition of "Mortgage File" by the appropriate county recorder's
office to be a true and complete copy of the original thereof submitted for
recording) is delivered to the Trustee or a Custodian appointed thereby on or
before the Closing Date. Neither the Trustee nor any Custodian shall in any way
be liable for any failure by any Mortgage Loan Seller or the Depositor to comply
with the delivery requirements of the related Mortgage Loan Purchase Agreement
and this Section 2.01(b). If, on the Closing Date as to any Mortgage Loan, the
applicable Mortgage Loan Seller cannot deliver in complete and recordable form
(or form suitable for filing or recording, if applicable) any one of the
assignments in favor of the Trustee referred to in clause (iii), (v) (to the
extent not already assigned pursuant to clause (iii)), (vii) (to the extent not
already assigned pursuant to clause (iii)) or (xi) of the definition of
"Mortgage File" solely because of the unavailability of filing or recording
information as to any existing document or instrument and/or because such
assignments are assignments in blank and have not been completed in favor of the
Trustee as specified in the related clause(s) of the definition of "Mortgage
File," such Mortgage Loan Seller may provisionally satisfy the delivery
requirements of the related Mortgage Loan Purchase Agreement and this Section
2.01(b) by delivering with respect to such Mortgage Loan on the Closing Date an
omnibus assignment of such Mortgage Loan substantially in the form of Exhibit H;
provided that all required original assignments with respect to such Mortgage
Loan, in fully complete and recordable form (or form suitable for filing or
recording, if applicable), are delivered to the Trustee or its Custodian within
180 days after the Closing Date (or within such longer period, not to exceed 18
months, as the Trustee in its discretion may consent to, which consent shall not
be unreasonably withheld so long as the applicable Mortgage Loan Seller is, as
certified in writing to the Trustee no less often than every 90 days, attempting
in good faith to obtain from the appropriate public filing office or county
recorder's office the applicable filing or recording information as to the
related document or instrument). Notwithstanding anything herein to the
contrary, with respect to letters of credit, the applicable Mortgage Loan Seller
shall deliver to the 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 30 days of the Closing Date. If not otherwise
paid by the related Mortgagor, the applicable Mortgage Loan Seller shall pay any
costs of assignment or amendment of such letter(s) of credit required in order
for the 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
("Assignments" and, individually, "Assignment") relating to the Mortgage Loans
conveyed by it under the applicable Mortgage Loan Purchase Agreement in proper
form for filing or recording, as applicable, and to submit such Assignments for
filing or recording, as the case may be, in the applicable public filing or
recording office, and on the Closing Date, such Mortgage Loan Seller may deliver
one (1) omnibus assignment for all such Mortgage Loans to the Trustee or its
Custodian as provided in Section 2.01(b). Except under the circumstances
provided for in the last sentence of this subsection (c), the related Mortgage
Loan Seller will itself, or a third party at such Mortgage Loan Seller's expense
will, promptly (and in any event within 120 days after the later of the Closing
Date and the Trustee's actual receipt of the related documents and the necessary
recording and filing information) cause to be submitted for recording or filing,
as the case may be, in the appropriate public office for real property records
or UCC Financing Statements, as appropriate, each assignment to the Trustee
referred to in clauses (iii) and (v) of the definition of "Mortgage File" and
each UCC assignment to the Trustee referred to in clause (xi) of the definition
of "Mortgage File." Each such Assignment submitted for recording shall reflect
that it should be returned by the public recording office to the Trustee or its
designee following recording (or to the agent of the Mortgage Loan Seller who
will then be responsible for delivery of the same to the Trustee or its
designee), and each such UCC assignment submitted for recording or filing shall
reflect that the file copy thereof should be returned to the Trustee or its
designee following recording or filing (or to the agent of the Mortgage Loan
Seller who will then be responsible for delivery of the same to the Trustee or
its designee). If any such document or instrument is determined to be incomplete
or not to meet the recording or filing requirements of the jurisdiction in which
it is to be recorded or filed, or is lost by the public office or returned
unrecorded or unfiled, as the case may be, because of a defect therein, on or
about 180 days after the Closing Date, the related Mortgage Loan Seller or its
designee shall prepare, at its own expense, a substitute therefor or cure such
defect, as the case may be, and thereafter the Mortgage Loan Seller or its
designee shall, at the expense of the related Mortgage Loan Seller, upon receipt
thereof cause the same to be duly recorded or filed, as appropriate. If, by the
first anniversary of the Closing Date, the Trustee has not received confirmation
of the recording or filing as the case may be, of any such Assignment, it shall
so advise the related Mortgage Loan Seller who may then pursue such confirmation
itself or request that the Trustee pursue such confirmation at the related
Mortgage Loan Seller's expense, and upon such a request and provision for
payment of such expenses satisfactory to the Trustee, the Trustee, at the
expense of the applicable Mortgage Loan Seller, shall cause a search of the land
records of each applicable jurisdiction and of the records of the offices of the
applicable Secretary of State for confirmation that the Assignment appears in
such records and retain a copy of such confirmation in the related Mortgage
File. In the event that confirmation of the recording or filing of an Assignment
cannot be obtained, the Trustee or the related Mortgage Loan Seller, as
applicable, shall promptly inform the other and the Trustee shall provide such
Mortgage Loan Seller with a copy of the Assignment and request the preparation
of a new Assignment. The related Mortgage Loan Seller shall pay the expenses for
the preparation of replacement Assignments for any Assignments which, having
been properly submitted for filing or recording to the appropriate governmental
office by the Trustee, fail to appear of record and must be resubmitted.
Notwithstanding the foregoing, there shall be no requirement to record any
assignment to the Trustee referred to in clause (iii) or (v) of the definition
of "Mortgage File," or to file any UCC-3 to the Trustee referred to in clause
(xi) of the definition of "Mortgage File," in those jurisdictions where, in the
written opinion of local counsel (which opinion shall be an expense of the
related Mortgage Loan Seller) acceptable to the Depositor and the Trustee, such
recordation and/or filing is not required to protect the Trustee's interest in
the related Mortgage Loans against sale, further assignment, satisfaction or
discharge by the related Mortgage Loan Seller, the 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 that are privileged communications or constitute legal or other
due diligence analyses and credit underwriting or due diligence analyses or
data) that (i) are not required to be a part of a Mortgage File in accordance
with the definition thereof and (ii) are reasonably necessary for the servicing
of each such Mortgage Loan, together with copies of all documents in each
Mortgage File, shall be delivered by the Depositor or the applicable Mortgage
Loan Seller to the 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 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
transferred by such Mortgage Loan Seller, whether such accounts are held in the
name of the applicable Mortgage Loan Seller or any other name to be transferred
to the 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 clause (i), (ii), (ix), (xv),
(xvi) (or, with respect to clause (xvi), a copy of such letter of credit and an
officer's certificate as contemplated by Section 2.01(b) hereof) and (xxiii) of
the definition of "Mortgage File" with respect to each Mortgage Loan, of a fully
executed original counterpart of each of the Mortgage Loan Purchase Agreements,
and of all other assets included in the Trust Fund and (2) declares (a) that it
or a Custodian on its behalf holds and will hold such documents and the other
documents delivered or caused to be delivered by the Mortgage Loan Sellers that
constitute the Mortgage Files, and (b) that it holds and will hold such other
assets included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders and, with respect to any original
document in the Mortgage File for each Loan Pair, for any present or future
Companion Holder or the holder of the 000 Xxxxxxxxx Xxxxxx Companion Loans or
the holder of the AmeriCold Portfolio Companion Loans (and for the benefit of
the Trustee as holder of the Uncertificated Lower-Tier Interests), as
applicable. If any Mortgage Loan Seller is unable to deliver or cause the
delivery of any original Mortgage Note, such Mortgage Loan Seller may deliver a
copy of such Mortgage Note, together with a signed lost note affidavit and
appropriate indemnity and shall thereby be deemed to have satisfied the document
delivery requirements of Sections 2.01 and 2.02.
(b) Within 90 days of the Closing Date, the Trustee or a Custodian
on its behalf, shall review the Mortgage Loan documents delivered or caused to
be delivered by the Mortgage Loan Sellers constituting the Mortgage Files; and,
promptly following such review (but in no event later than 90 days after the
Closing Date), the Trustee shall, in the form attached as Exhibit T, certify in
writing to each of the Rating Agencies, the Depositor, the Master 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, and (iii) based on such
examination and only as to the foregoing documents, the information set forth in
the Mortgage Loan Schedule with respect to the items specified in clauses (iv),
(vi) and (viii)(c) in the definition of "Mortgage Loan Schedule" is correct.
With respect to each Mortgage Loan listed on the Trustee Exception Report, the
Trustee shall specifically identify such Mortgage Loan together with the nature
of such exception (in the form reasonably acceptable to the Trustee and the
related Mortgage Loan Seller and separating items required to be in the Mortgage
File but never delivered from items which were delivered by the related Mortgage
Loan Seller but are out for filing or recording and have not been returned by
the filing office or the recorder's office).
(c) The Trustee, or a Custodian on its behalf, shall review the
Mortgage Loan documents received thereby subsequent to the Closing Date; and, on
or about the first anniversary of the Closing Date, the Trustee shall, in the
form attached as Exhibit V, certify in writing to each of the Depositor, the
Master 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 Mortgage Loan Sellers have
been reviewed by it or by a Custodian on its behalf and appear regular on their
face and appear to be executed and relate to such Mortgage Loan, and (iii) based
on such examination and only as to the foregoing documents, the information set
forth in the Mortgage Loan Schedule with respect to the items specified in
clauses (iv), (vi) and (viii)(c) in the definition of "Mortgage Loan Schedule"
is correct.
(d) Notwithstanding anything contained in this Section 2.02 and
Section 2.03(b) to the contrary, in the case of a deficiency in any of the
documents specified in clauses (ii) through (v), (viii), (ix), (xi) and (xii) in
the definition of "Mortgage File," resulting solely from a delay in the return
of the related documents from the applicable filing or recording office, which
deficiency (i) is continuing for (a) in the case of any Mortgage Loan that is
not a Specially Serviced Mortgage Loan, more than eighteen (18) months following
the Closing Date or (b) in the case of any Specially Serviced Mortgage Loan,
thirty (30) days following a Servicing Transfer Event, and (ii) impairs or
prohibits in any material way the 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, the Directing
Certificateholder, in its sole judgment, may permit the related Mortgage Loan
Seller, in lieu of repurchasing or substituting for the related Mortgage Loan,
to deposit with the Trustee an amount, to be held in trust in a segregated
Eligible Account, equal to 25% of the Stated Principal Balance of the related
Mortgage Loan (in the alternative, the related Mortgage Loan Seller may deliver
to the Trustee a letter of credit in such amount). Such funds or letter of
credit, as applicable, shall be held by the Trustee (i) until the date on which
the applicable Master Servicer certifies to the Trustee that such document
deficiency has been cured or the related Mortgage Loan is no longer part of the
Trust Fund, at which time the Trustee shall return such funds (or letter of
credit) to the related Mortgage Loan Seller, or (ii) until same are applied to
the Purchase Price (or the Substitution Shortfall Amount, if applicable) as set
forth below in this Section 2.02(d) in the event of a repurchase or substitution
by the related Mortgage Loan Seller. If the related Mortgage Loan is or becomes
a Specially Serviced Mortgage Loan and the Special Servicer certifies to the
Trustee that it has determined in the exercise of its reasonable judgment that
the document with respect to which such document deficiency exists is required
in connection with an imminent enforcement of the mortgagee's rights or remedies
under the related Mortgage Loan, defending any claim asserted by any Mortgagor
or third party with respect to the related Mortgage Loan, establishing the
validity or priority of any lien on collateral securing the Mortgage Loan or for
any immediate significant servicing obligation, the related Mortgage Loan Seller
shall be required to repurchase or substitute for the related Mortgage Loan in
accordance with the terms and conditions of Section 2.03(b) or Section 6 of the
related Mortgage Loan Purchase Agreement; provided, however, that such Mortgage
Loan Seller shall not be required to repurchase the Mortgage Loan for a period
of ninety (90) days after receipt of a notice to repurchase (together with any
applicable extension period) if it is attempting to recover the document from
the applicable filing or recording office and provides an officer's certificate
setting forth what actions such Mortgage Loan Seller is pursuing in connection
with such recovery. In the event of a repurchase or substitution, upon such
date, the Trustee shall deposit, or cause the 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 that exceed the Substitution
Shortfall Amount shall be returned to the Mortgage Loan Seller) in accordance
with Section 2.03(b). All such funds deposited with the Trustee shall be
invested in Permitted Investments, at the direction and for the benefit of the
related Mortgage Loan Seller. Such funds shall be treated as an "outside reserve
fund" under the REMIC Provisions, which, together with any reimbursement from
the Lower-Tier REMIC, is beneficially owned by the related Mortgage Loan Seller
for federal income tax purposes, which Mortgage Loan Seller shall remain liable
for any taxes payable on income or gain with respect thereto.
(e) It is herein acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation (i) to determine whether any of the
documents specified in clauses (vi), (vii), (viii), (x) and (xii) through (xxii)
of the definition of "Mortgage File" exist or are required to be delivered by
the Depositor, the Mortgage Loan Sellers or any other Person (unless identified
on the Mortgage Loan Checklist) or (ii) to inspect, review or examine any of the
documents, instruments, certificates or other papers relating to the Mortgage
Loans delivered to it to determine that the same are genuine, enforceable,
sufficient to perfect and maintain the perfection of a security interest or
appropriate for the represented purpose or that they are other than what they
purport to be on their face and, with respect to the documents specified in
clause (ix), whether the insurance is effective as of the date of the
recordation, whether all endorsements or riders issued are included in the file
or if the policy has not been issued whether any acceptable replacement document
has been dated the date of the related Mortgage Loan funding. Further, with
respect to the UCC financing statements referenced in the Mortgage File, absent
actual knowledge to the contrary or copies of UCC financing statements delivered
to the Trustee as part of the Mortgage File indicating otherwise, the Trustee
may assume, for the purposes of the filings and the certification to be
delivered in accordance with this Section 2.02 that the related Mortgage File
should include one state level UCC financing statement filing for each Mortgaged
Property (or with respect to any Mortgage Loan that has two or more Mortgagors,
for each Mortgagor, except to the extent multiple Mortgagors are named as
debtors in the same UCC financing statement filing), or if the Trustee has
received notice that a particular UCC financing statement was filed as a fixture
filing, that the related Mortgage File should include only a local UCC financing
statement filing for each Mortgaged Property (or with respect to any Mortgage
Loan that has two or more Mortgagors, for each Mortgagor, except to the extent
multiple Mortgagors are named as debtors in the same UCC financing statement
filing). The assignments of the UCC financing statements to be assigned to the
Trust will be delivered on the new national forms (or on such other form as may
be acceptable for filing or recording in the applicable jurisdiction) and in a
format suitable for filing or recording, as applicable, and will be filed or
recorded in the jurisdiction(s) where such UCC financing statements were
originally filed or recorded, as indicated in the documents provided, and in
accordance with then current laws.
(f) If, in the process of reviewing the Mortgage Files or at any
time thereafter, the Trustee or any Custodian finds any document or documents
constituting a part of a Mortgage File (1) not to have been properly executed,
(2) subject to Section 2.01(b) and (c), not to have been delivered, (3) to
contain information that does not conform in any material respect with the
corresponding information set forth in the Mortgage Loan Schedule or (4) to be
defective on its face (each, a "Defect" in the related Mortgage File), the
Trustee shall promptly so notify the Depositor, the 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 calendar quarter thereafter, commencing with the quarter ending
September 30, 2007 until March 31, 2010, 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, the Paying Agent, the Trustee or the Directing
Certificateholder discovers (without implying any duty of such person to make,
or to attempt to make, such a discovery) or receives notice of a Defect in any
Mortgage File or a breach of any representation or warranty with respect to a
Mortgage Loan set forth in, or required to be made with respect to, a Mortgage
Loan by the applicable Mortgage Loan Seller pursuant to the related Mortgage
Loan Purchase Agreement (a "Breach"), which Defect or Breach, as the case may
be, materially and adversely affects the value of such Mortgage Loan, the value
of the related Mortgaged Property or the interests of the Trustee or any
Certificateholder therein, such Certificateholder, the applicable Master
Servicer, the Special Servicer, the Trustee, the Paying Agent or the Directing
Certificateholder, as applicable, shall give prompt written notice of such
Defect or Breach, as the case may be, to the Depositor, the applicable Master
Servicer, the Special Servicer, the applicable Mortgage Loan Seller, the
Trustee, the Paying Agent and the Directing Certificateholder and shall request
in writing that the applicable Mortgage Loan Seller, not later than 90 days
after the earlier of (i) the applicable Mortgage Loan Seller's receipt of such
notice or (ii) in the case of a Defect or Breach relating to a Mortgage Loan not
being a "qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code, but without regard to the rule of Treasury Regulations Section
1.860G-2(f)(2) that causes a defective mortgage loan to be treated as a
qualified mortgage, the applicable Mortgage Loan Seller's discovery of such
Defect or Breach (the "Initial Cure Period") that materially and adversely
affects the value of any Mortgage Loan, the value of the related Mortgaged
Property or the interests of the Trustee or any Certificateholder therein, (i)
cure such Defect or Breach, as the case may be, in all material respects, (ii)
repurchase the affected Mortgage Loan or REO Loan at the applicable Purchase
Price and in conformity with the applicable Mortgage Loan Purchase Agreement and
this Agreement or (iii) substitute a Qualified Substitute Mortgage Loan 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 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) 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 in the Certificate Account. If any Breach pertains to
a representation or warranty that the related Mortgage Loan documents or any
particular Mortgage Loan document requires the related Mortgagor to bear the
costs and expenses associated with any particular action or matter under such
Mortgage Loan document(s), then the related Mortgage Loan Seller shall cure such
Breach within the applicable cure period (as the same may be extended) by
reimbursing the Trust Fund (by wire transfer of immediately available funds) the
reasonable amount of any such costs and expenses incurred by the applicable
Master Servicer, the Special Servicer, the Paying Agent, the Trustee or the
Trust Fund that are the basis of such Breach and have not been reimbursed by the
related Mortgagor; provided, however, that in the event any such costs and
expenses exceed $10,000, the related Mortgage Loan Seller shall have the option
to either repurchase or substitute for the related Mortgage Loan as provided
above or pay such costs and expenses. Except as provided in the proviso to the
immediately preceding sentence, the related Mortgage Loan Seller shall remit the
amount of such costs and expenses and upon its making such remittance, the
related Mortgage Loan Seller shall be deemed to have cured such Breach in all
respects. To the extent any fees or expenses that are the subject of a cure by
the related Mortgage Loan Seller are subsequently obtained from the related
Mortgagor, the portion of the cure payment made by the related Mortgage Loan
Seller equal to such fees or expenses obtained from the Mortgagor shall be
returned to the related Mortgage Loan Seller pursuant to Section 2.03(f) below.
Monthly Payments due with respect to each Qualified Substitute Mortgage Loan (if
any) after the related Due Date in the month of substitution, and Monthly
Payments due with respect to each Mortgage Loan being repurchased or replaced
after the related Cut-off Date and received by the 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. Notwithstanding anything contained in this Agreement or the
related Mortgage Loan Purchase Agreement, no delay in either the discovery of a
Defect or Breach or delay on the part of any party to this Agreement in
providing notice of such Defect or Breach shall relieve the Mortgage Loan Seller
of its obligation to repurchase if it is otherwise required to do so under the
related Mortgage Loan Purchase Agreement and/or this Agreement.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Defect" and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in a Mortgage Loan and to
be deemed to materially and adversely affect the interest of the
Certificateholders in and the value of a Mortgage Loan: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity that appears to be regular
on its face; (b) the absence from the Mortgage File of the original signed
Mortgage (including any related assignments) that appears to be regular on its
face, unless there is included in the Mortgage File a certified copy of the
Mortgage and a certificate stating that the original signed Mortgage was sent
for recordation; (c) the absence from the Mortgage File of the item called for
by paragraph (ix) of the definition of Mortgage File; (d) the absence from the
Mortgage File of any intervening assignments required to create a complete chain
of assignment to the Trustee on behalf of the Trust, unless there is included in
the Mortgage File a certified copy of each such missing intervening assignment
and a certificate stating that the original intervening assignments were sent
for filing or recordation, as applicable; (e) the absence from the Mortgage File
of any required letter of credit; or (f) with respect to any leasehold mortgage
loan, the absence from the related Mortgage File of a copy (or an original, if
available) of the related Ground Lease; provided, however, that no Defect
(except the Defects previously described 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.
(d) Section 6(e) of each of the Mortgage Loan Purchase Agreements
provides the sole remedy available to the Certificateholders (subject to the
limitations on the rights of the Certificateholders under this Agreement), or
the Trustee on behalf of the Certificateholders, with respect to any Defect in a
Mortgage File or any Breach of any representation or warranty with respect to a
Mortgage Loan set forth in or required to be made pursuant to Section 6 of any
of the Mortgage Loan Purchase Agreements.
(e) The applicable Master Servicer or the Special Servicer (in the
case of Specially Serviced Mortgage Loans) shall, for the benefit of the
Certificateholders and the Trustee (as holder of the Uncertificated Lower-Tier
Interests), enforce the obligations of the applicable Mortgage Loan Seller under
the applicable Mortgage Loan Purchase Agreement. Such enforcement, including,
without limitation, the legal prosecution of claims, if any, shall be carried
out in such form, to such extent and at such time as the applicable Master
Servicer or the Special Servicer would require were it, in its individual
capacity, the owner of the affected Mortgage Loan(s). Any costs incurred by any
Master Servicer or the Special Servicer with respect to the enforcement of the
obligations of the applicable Mortgage Loan Seller under the applicable Mortgage
Loan Purchase Agreement shall be deemed to be Servicing Advances to the extent
not otherwise provided herein. The applicable Master Servicer or the Special
Servicer, as applicable, shall be reimbursed for the reasonable costs of such
enforcement: first, from a specific recovery, if any, of costs, expenses or
attorneys' fees against the applicable Mortgage Loan Seller; second, pursuant to
Section 3.05(a)(vii) herein out of the related Purchase Price, to the extent
that such expenses are a specific component thereof; and third, if at the
conclusion of such enforcement action it is determined that the amounts
described in clauses first and second are insufficient, then pursuant to Section
3.05(a)(viii) herein out of general collections on the Mortgage Loans on deposit
in the Certificate Account.
(f) If a Mortgage Loan Seller incurs any expense in connection with
the curing of a Breach, which also constitutes a default under the related
Mortgage Loan and is reimbursable thereunder, such Mortgage Loan Seller shall
have a right, and shall be subrogated to the rights of the Trustee and the Trust
Fund under the Mortgage Loan, to recover the amount of such expenses from the
related Mortgagor; provided, however, that such Mortgage Loan Seller's rights
pursuant to this Section 2.03(f) shall be junior, subject and subordinate to the
rights of the Trustee, the Paying Agent, the Trust Fund, the 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 Paying Agent, 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, the Paying
Agent 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 will be required to
repurchase or substitute for such other Crossed Loan(s) in the related Crossed
Group as provided in Section 2.03(b) unless such other Crossed Loans satisfy the
Crossed Loan Repurchase Criteria and satisfy all other criteria for substitution
and repurchase of Mortgage Loans set forth herein. In the event that the
remaining Crossed Loans in such Crossed Group satisfy the aforementioned
criteria, the applicable Mortgage Loan Seller may elect either to repurchase or
substitute for only the affected Crossed Loan as to which the related Breach or
Defect exists or to repurchase or substitute for all of the Crossed Loans in the
related Crossed Group. Any reserve or other cash collateral or letters of credit
securing the Crossed Loans shall be allocated between such Mortgage Loans in
accordance with the related Mortgage Loan documents or otherwise on a pro rata
basis based upon their outstanding Stated Principal Balances. Except as provided
in Section 2.03(h), all other terms of the Mortgage Loans shall remain in full
force and effect without any modification thereof.
(h) Notwithstanding the foregoing, if the related Mortgage provides
for the partial release of one or more of the Crossed Loans, the Depositor may
cause the related Mortgage Loan Seller to repurchase only that Mortgage Loan
required to be repurchased pursuant to this Section 2.03, pursuant to the
partial release provisions of the related Mortgage; provided, however, that (i)
the remaining Mortgage Loan(s) fully comply with the terms and conditions of the
related Mortgage, this Agreement and the related Mortgage Loan Purchase
Agreement, including the Crossed Loan Repurchase Criteria, (ii) in connection
with such partial release, the related Mortgage Loan Seller obtains an Opinion
of Counsel (at such Mortgage Loan Seller's expense) to the effect that the
contemplated action will not, with respect to the Upper-Tier REMIC or the
Lower-Tier REMIC created hereunder, endanger such status or result in the
imposition of any tax and (iii) in connection with such partial release, the
related Mortgage Loan Seller delivers or causes to be delivered to the Custodian
original modifications to the Mortgage prepared and executed in connection with
such partial release.
(i) With respect to any Crossed Loan, to the extent that the
applicable Mortgage Loan Seller is required to repurchase or substitute for such
Mortgage Loan in the manner prescribed in Section 2.03(g) while the Trustee
continues to hold any other Crossed Loans in the related Crossed Group, the
applicable Mortgage Loan Seller and the Trustee, as assignee of the Depositor,
will, as set forth in the related Mortgage Loan Purchase Agreement, forbear from
enforcing any remedies against the other's Primary Collateral but each will be
permitted to exercise remedies against the Primary Collateral securing its
respective Mortgage Loans, including with respect to the Trustee, the Primary
Collateral securing Mortgage Loans still held by the Trustee, so long as such
exercise does not materially impair the ability of the other party to exercise
its remedies against its Primary Collateral. If the exercise of the remedies by
one party would materially impair the ability of the other party to exercise its
remedies with respect to the Primary Collateral securing the Crossed Loans held
by such party, then both parties have agreed in the related Mortgage Loan
Purchase Agreement to forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Mortgage Loans can be
modified in a manner that complies with the Mortgage Loan Purchase Agreement to
remove the threat of material impairment as a result of the exercise of
remedies.
Section 2.04 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests. The Trustee hereby acknowledges the assignment to it of
the Mortgage Loans and, subject to Sections 2.01 and 2.02, the delivery to it,
or a Custodian on its behalf, of the Mortgage Files and a fully executed
original counterpart of each of the Mortgage Loan Purchase Agreements, together
with the assignment to it of all of the other assets included in the Lower-Tier
REMIC. Concurrently with such assignment and delivery, and in exchange for the
Mortgage Loans, receipt of which is hereby acknowledged, the Trustee (i)
acknowledges the issuance of the Uncertificated Lower-Tier Interests by the
Paying Agent to the Depositor, (ii) acknowledges the authentication and delivery
of the Class LR Certificates by the Paying Agent to or upon the order of the
Depositor, (iii) acknowledges the contribution by the Depositor of the
Uncertificated Lower-Tier Interests to the Upper-Tier REMIC and (iv) immediately
thereafter, the Trustee acknowledges that it has caused the Certificate
Registrar to execute and caused the Authenticating Agent to authenticate and to
deliver to or upon the order of the Depositor, in exchange for the
Uncertificated Lower-Tier Interests, the Regular Certificates and the Class R
Certificates, and the Depositor hereby acknowledges the receipt by it or its
designees, of such Certificates in authorized Denominations evidencing the
entire beneficial ownership of the Upper-Tier REMIC.
[End of Article II]
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Master Servicers to Act as Master Servicers; Special
Servicer to Act as Special Servicer; Administration of the Mortgage Loans. (a)
(i) The Master Servicer No. 1 shall service and administer the Mortgage Loans
and the Companion Loans it is obligated to service pursuant to this Agreement as
an independent contractor 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 Companion Holders and the Trustee (as holder of the Uncertificated
Lower-Tier Interests) as a collective whole, taking into account the subordinate
nature of the Companion Loans, as the case may be (as determined by the Master
Servicer No. 1 in its reasonable judgment) in accordance with applicable law,
the terms of this Agreement (and with respect to each Loan Pair, the related
Intercreditor Agreement) and the terms of the respective Mortgage Loans and, if
applicable, the Companion Loans, and to the extent consistent with the
foregoing, in accordance with the higher of the following standards of care: (1)
with the same care, skill and diligence as is normal and usual in its mortgage
servicing activities on behalf of third parties or on behalf of itself,
whichever is higher, with respect to mortgage loans that are comparable to the
Mortgage Loans, (2) with a view to the timely collection of all principal and
interest and other amounts due and payable under the Mortgage Loans or, if
applicable, the Companion Loans and the AB Mortgage Loans as a collective whole,
taking into account the subordinate or pari passu nature of the Companion Loans,
as applicable, and without regard to: (1) any relationship that the Master
Servicer No. 1 or any Affiliate of the Master Servicer No. 1 may have with any
Mortgagor or any Affiliate thereof; (2) the ownership of any Certificate or, if
applicable, mezzanine loan or Companion Loan, by the Master Servicer No. 1 or
any Affiliate of the Master Servicer No. 1; (3) the Master Servicer No. 1's
obligation to make Advances; and (4) the adequacy of the Master Servicer No. 1's
right to receive compensation payable to it and reimbursement for its costs
hereunder or with respect to any particular transaction (the foregoing,
collectively referred to as the "Master Servicer No. 1 Servicing Standard").
With respect to each Loan Pair, in the event of a conflict between this
Agreement and the related Intercreditor Agreement, the related Intercreditor
Agreement shall control; provided, in no event shall the Master Servicer No. 1
take any action or omit to take any action in accordance with the terms of any
Intercreditor Agreement that would cause the Master Servicer No. 1 to violate
the Master Servicer No. 1 Servicing Standards. Pursuant to the terms of each
Mezz Cap AB Mortgage Loan Intercreditor Agreement, it is contemplated that the
Mortgagor under the Mezz Cap AB Mortgage Loans and the related Companion Loans
will remit payments on the related Mezz Cap AB Mortgage Loans to the Master
Servicer No. 1 hereunder, and for each such Companion Loan that has been
securitized or that is securitized in the future, the related Mortgagor will
remit payments on such Companion Loan directly to the servicer for such
Companion Loan (including a securitization servicer); provided, however, that
prior to the securitization of such Companion Loan and under certain other
circumstances identified in each Mezz Cap AB Mortgage Loan Intercreditor
Agreement, the Mortgagor under such Companion Loan (even after the Companion
Loan has been securitized) will be required to remit payments on such Companion
Loan directly to the Master Servicer No. 1 under this Agreement.
(ii) Each of the Master Servicer No. 2 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 Uncertificated Lower-Tier Interests), as a collective
whole, taking into account the subordinate or pari passu nature of the Companion
Loans, as the case may be (as determined by the Master Servicer No. 2 or the
Special Servicer, as the case may be, in its reasonable judgment), in accordance
with applicable law, the terms of this Agreement and, with respect to each Loan
Pair, the related Intercreditor Agreement and the terms of the respective
Mortgage Loans and, if applicable, the related Companion Loan, taking into
account the subordinate or pari passu nature of the Companion Loan, as the case
may be. With respect to each Loan Pair, in the event of a conflict between this
Agreement and the related Intercreditor Agreement, the related Intercreditor
Agreement shall control; provided, in no event shall the Master Servicer No. 2
or the Special Servicer take any action or omit to take any action in accordance
with the terms of any Intercreditor Agreement that would cause the Master
Servicer No. 2 or the Special Servicer, as the case may be, to violate the
General Servicing Standards. Pursuant to the terms of each Mezz Cap AB Mortgage
Loan Intercreditor Agreement, it is contemplated that the Mortgagor under the
Mezz Cap AB Mortgage Loans and the related Companion Loan will remit payments on
the related Mezz Cap AB Mortgage Loans to the Master Servicer No. 2 hereunder,
and for the Companion Loan, the related Mortgagor will remit payments on the
related Companion Loan directly to the servicer for such Companion Loan
(including a securitization servicer); provided, however, that prior to the
securitization of the Companion Loan and under certain other circumstances
identified in each Mezz Cap AB Mortgage Loan Intercreditor Agreement, the
Mortgagor under the Companion Loan (even after the Companion Loan has been
securitized) will be required to remit payments on such Companion Loan directly
to the Master Servicer No. 2 under this Agreement. To the extent consistent with
the foregoing, the Master Servicer No. 2 and the Special Servicer shall service
the Mortgage Loans and Companion Loans in accordance with the higher of the
following standards of care: (1) in the same manner in which, and with the same
care, skill, prudence and diligence with which the Master Servicer No. 2 or the
Special Servicer, as the case may be, services and administers similar mortgage
loans for other third party portfolios and (2) the same care, skill, prudence
and diligence with which the Master Servicer No. 2 or the Special Servicer, as
the case may be, services and administers similar mortgage loans owned by the
Master Servicer No. 2 or the Special Servicer, as the case may be, with a view
to the maximization of timely recovery of principal and interest on a net
present value basis on the Mortgage Loans or the Specially Serviced Mortgage
Loans and any related Companion Loan, as applicable, and the best interests of
the Trust and the Certificateholders (and in the case of an AB Mortgage Loan,
the related Companion Holder, taking into account the subordinate or pari passu
nature of the subject Companion Loan), as determined by the Master Servicer No.
2 or the Special Servicer, as the case may be, in its reasonable judgment, in
either case giving due consideration to the customary and usual standards of
practice of prudent institutional, multifamily and commercial mortgage loan
servicers, but without regard to: (i) any relationship that the Master Servicer
No. 2, the Special Servicer or any Affiliate of the Master Servicer No. 2 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, if applicable, mezzanine loan or Companion Loan
by the Master Servicer No. 2, the Special Servicer or any Affiliate of the
Master Servicer No. 2 or Special Servicer, as applicable; (iii) the Master
Servicer No. 2's obligation to make Advances; (iv) the adequacy of the Master
Servicer No. 2's or Special Servicer's, as the case may be, right to receive
compensation for its services and reimbursement for its costs hereunder or with
respect to any particular transaction; (v) the ownership, servicing or
management for others of any other mortgage loans or mortgaged properties by the
Master Servicer No. 2 or Special Servicer; (vi) any option to purchase any
Mortgage Loan or Companion Loan it may have; and (vii) any other debt the Master
Servicer No. 2 or the Special Servicer or any of its Affiliates has extended to
any Mortgagor or any of its Affiliates (the foregoing, referred to as the
"Master Servicer No. 2 Servicing Standard" and the "Special Servicer Servicing
Standard", respectively, and collectively referred to as the "General Servicing
Standards" and, together with the Master Servicer No. 1 Servicing Standard, the
"Servicing Standards").
Without limiting the foregoing, subject to Section 3.21, the Master
Servicer No. 1, the Master Servicer No. 2 and the Special Servicer, as the case
may be, shall be obligated to service and administer (i) any 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 000 Xxxxxxxxx Xxxxxx Mortgaged Property and the
AmeriCold Portfolio 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 (other than the 000 Xxxxxxxxx Xxxxxx
Mortgage Loan and the AmeriCold Portfolio Mortgage Loan) 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. 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 Mortgage Loans and related 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 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.
Subject only to the Servicing Standards and the terms of this
Agreement and of the respective Mortgage Loans and, if applicable, the Companion
Loans, and any applicable Intercreditor Agreements, and applicable law, the
Master 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, neither any Master Servicer nor the Special Servicer shall,
without the Trustee's written consent, use such power of attorney to: (i)
initiate any action, suit or proceeding directly relating to the servicing of a
Mortgage Loan solely under the Trustee's name without indicating such Master
Servicer's or Special Servicer's, as applicable, representative capacity, (ii)
initiate any other action, suit or proceeding not directly relating to the
servicing of a Mortgage Loan (including but not limited to actions, suits or
proceedings against Certificateholders, or against the Depositor or Mortgage
Loan Seller for breaches of representations and warranties) solely under the
Trustee's name, (iii) engage counsel to represent the Trustee in any action,
suit or proceeding not directly relating to the servicing of a Mortgage Loan
(including but not limited to actions, suits or proceedings against
Certificateholders, or against the Depositor or Mortgage Loan Seller for
breaches of representations and warranties), or (iv) prepare, execute or deliver
any government filings, forms, permits, registrations or other documents or take
any action with the intent to cause, and that actually causes, the Trustee to be
registered to do business in any state.
(b) 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, 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, 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, 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.
(c) 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.
(d) 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.
(e) Within 60 days (or such shorter time period as is required by
the terms of the applicable Mortgage Loan documents) after the later of (i) the
receipt thereof by the applicable Master Servicer and (ii) the Closing Date, (x)
the applicable Mortgage Loan Seller pursuant to the Mortgage Loan Purchase
Agreement shall notify each provider of a letter of credit for each Mortgage
Loan identified as having a letter of credit on the Mortgage Loan Schedule, that
the Trust (in care of the 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 (y) 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. If a letter of credit is
required to be drawn upon earlier than the date the applicable Mortgage Loan
Seller has notified the provider of such letter of credit pursuant to clause (i)
of the immediately preceding sentence, such Mortgage Loan Seller shall cooperate
with the reasonable requests of the applicable Master Servicer or Special
Servicer in connection with making a draw under such letter of credit. If the
Mortgage Loan documents do not require the related Mortgagor to pay any costs
and expenses relating to any modifications to or assignment of the related
letter of credit, then the applicable Mortgage Loan Seller shall pay such costs
and expenses. If the Mortgage Loan documents require the related Mortgagor to
pay any costs and expenses relating to any modifications to the related letter
of credit, and such Mortgagor fails to pay such costs and expenses after the
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.
(f) Notwithstanding anything herein to the contrary, in no event
shall the Master Servicers (or the Trustee, as applicable) make an Advance with
respect to any Companion Loan to the extent the related AB Mortgage Loan has
been paid in full or is no longer included in the Trust Fund.
(g) Servicing and administration of each Companion Loan shall
continue hereunder and in accordance with the related Intercreditor Agreement
for so long as the corresponding AB 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.
(h) The Special Servicer agrees that upon the occurrence of a
Servicing Transfer Event with respect to any AB Mortgage Loan or other Mortgage
Loan that may become subject to an Intercreditor Agreement in the future, it
shall, subject to Section 3.21, use commercially reasonable efforts to enforce,
on behalf of the Trust (taking into consideration the Companion Loans as a
collective whole), subject to the Servicing Standards and to the extent the
Special Servicer determines such action is in the best interests of the Trust
Fund, all rights conveyed to the Trustee pursuant to any such Intercreditor
Agreement. The costs and expenses incurred by the Special Servicer in connection
with such enforcement shall be paid from the Certificate Account as a trust fund
expense.
(i) 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 000
Xxxxxxxxx Xxxxxx Mortgage Loan are limited by and subject to the terms of the
000 Xxxxxxxxx Xxxxxx Intercreditor Agreement and the rights of the 000 Xxxxxxxxx
Xxxxxx Master Servicer and the 000 Xxxxxxxxx Xxxxxx Special Servicer with
respect thereto under the 0000-XXX00 Xxxxxxx 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 000 Xxxxxxxxx
Xxxxxx Mortgage Loan) under the 000 Xxxxxxxxx Xxxxxx Intercreditor Agreement and
the 0000-XXX00 Xxxxxxx Agreement.
(j) The parties hereto acknowledge that the 000 Xxxxxxxxx Xxxxxx
Mortgage Loan is subject to the terms and conditions of the 000 Xxxxxxxxx Xxxxxx
Intercreditor Agreement and further acknowledge that, pursuant to the 000
Xxxxxxxxx Xxxxxx Intercreditor Agreement, (i) the 000 Xxxxxxxxx Xxxxxx Mortgage
Loan is to be serviced and administered by the 000 Xxxxxxxxx Xxxxxx Master
Servicer and the 000 Xxxxxxxxx Xxxxxx Special Servicer in accordance with the
0000-XXX00 Xxxxxxx Agreement, and (ii) in the event that (A) the 000 Xxxxxxxxx
Xxxxxx Companion Loans are no longer part of the trust fund created by the
0000-XXX00 Xxxxxxx Agreement and (B) the 000 Xxxxxxxxx Xxxxxx Mortgage Loan is
included in the Trust Fund, then, as set forth in the 000 Xxxxxxxxx Xxxxxx
Intercreditor Agreement, the 000 Xxxxxxxxx Xxxxxx Whole Loan shall be serviced
in accordance with the applicable provisions of a pooling agreement negotiated
by the holder of the 000 Xxxxxxxxx Xxxxxx Companion Loans that is substantially
similar to the 0000-XXX00 Xxxxxxx Agreement, until such time as a new servicing
agreement has been agreed to by the parties to the 000 Xxxxxxxxx Xxxxxx
Intercreditor Agreement in accordance with the provisions of such agreement and
confirmation has been obtained from the Rating Agencies and Fitch 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.
(k) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that each Master Servicer's and the Special
Servicer's obligations and responsibilities hereunder and each Master Servicer's
and the Special Servicer's authority with respect to the AmeriCold Portfolio
Mortgage Loan are limited by and subject to the terms of the AmeriCold Portfolio
Intercreditor Agreement and the rights of the AmeriCold Portfolio Master
Servicer, the AmeriCold Portfolio Special Servicer and the AmeriCold Portfolio
Primary Servicer with respect thereto under the 2007-CIBC18 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 AmeriCold Portfolio Mortgage Loan) under the AmeriCold Portfolio
Intercreditor Agreement and the 2007-CIBC18 Pooling Agreement.
(l) The parties hereto acknowledge that the AmeriCold Portfolio
Mortgage Loan is subject to the terms and conditions of the AmeriCold Portfolio
Intercreditor Agreement and further acknowledge that, pursuant to the AmeriCold
Portfolio Intercreditor Agreement, (i) the AmeriCold Portfolio Mortgage Loan is
to be serviced and administered by the AmeriCold Portfolio Master Servicer, the
AmeriCold Portfolio Special Servicer and the AmeriCold Portfolio Primary
Servicer in accordance with the 2007-CIBC18 Pooling Agreement, and (ii) in the
event that (A) the AmeriCold Portfolio Companion Loans are no longer part of the
trust fund created by the 2007-CIBC18 Pooling Agreement and (B) the AmeriCold
Portfolio Mortgage Loan is included in the Trust Fund, then, as set forth in the
AmeriCold Portfolio Intercreditor Agreement, the AmeriCold Portfolio Whole Loan
shall be serviced in accordance with the applicable provisions of a pooling
agreement negotiated by the holder of the AmeriCold Portfolio Companion Loans
that is substantially similar to the 2007-CIBC18 Pooling Agreement, until such
time as a new servicing agreement has been agreed to by the parties to the
AmeriCold Portfolio Intercreditor Agreement in accordance with the provisions of
such agreement and confirmation has been obtained from the Rating Agencies and
Fitch 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.
Section 3.02 Collection of Mortgage Loan Payments. (a) Each of the
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 and Companion Loans (subject to the right of certain Companion Holders to
receive payments directly from the related Mortgagor pursuant to the related
Intercreditor Agreement) it is obligated to service hereunder, and shall follow
such collection procedures as are consistent with this Agreement (including,
without limitation, the Servicing Standards), provided that the applicable
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 in connection with any delinquent payment on a Mortgage Loan or
Companion Loan it is obligated to service hereunder three times during any
period of twenty-four consecutive months with respect to any Mortgage Loan or
Companion Loan; provided, that the applicable Master Servicer or the Special
Servicer, as applicable, may in its discretion waive any Penalty Charge in
connection with any delinquent payment on a Mortgage Loan or Companion Loan one
additional time in such 24-month period so long as with respect to any of the
foregoing waivers, no Advance or additional Trust Fund expense has been incurred
and remains unreimbursed to the Trust with respect to such Mortgage Loan or
Companion Loan. Any additional waivers during such 24-month period with respect
to such Mortgage Loan may be made only after the 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 Loan Pair, in
accordance with the related Intercreditor Agreement) and, in the absence of such
express provisions, such payments from Mortgagors, Insurance and Condemnation
Proceeds or Liquidation Proceeds shall be applied (after reimbursement first to
the Trustee and second to the 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 Loan Pair, 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) [Reserved].
(e) With respect to any Mortgage Loan in connection with which the
Mortgagor was required to escrow funds or to post a letter of credit related to
obtaining certain performance objectives described in the applicable Mortgage
Loan documents, the 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 U-1) to the 000 Xxxxxxxxx
Xxxxxx Master Servicer stating that, as of the Closing Date, the Trustee is the
holder of the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and directing the 000 Xxxxxxxxx
Xxxxxx Master Servicer 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 applicable 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 000 Xxxxxxxxx Xxxxxx Mortgage
Loan under the 000 Xxxxxxxxx Xxxxxx Intercreditor Agreement and the 0000-XXX00
Xxxxxxx Agreement. The applicable Master Servicer shall, within two Business
Days of receipt, deposit into the Certificate Account all amounts received with
respect to the 000 Xxxxxxxxx Xxxxxx Mortgage Loan, the 000 Xxxxxxxxx Xxxxxx
Mortgaged Property or any related REO Property.
(g) Promptly following the Closing Date, the Trustee shall send
written notice (in the form attached hereto as Exhibit U-2) to the AmeriCold
Portfolio Primary Servicer stating that, as of the Closing Date, the Trustee is
the holder of the AmeriCold Portfolio Mortgage Loan and directing the AmeriCold
Portfolio Primary Servicer 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 applicable 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 AmeriCold Portfolio
Mortgage Loan under the AmeriCold Portfolio Intercreditor Agreement and the
2007-CIBC18 Pooling Agreement. The applicable Master Servicer shall, within two
Business Days of receipt, deposit into the Certificate Account all amounts
received with respect to the AmeriCold Portfolio Mortgage Loan, the AmeriCold
Portfolio Mortgaged Property or any related REO Property.
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.
Amounts on deposit in Servicing Accounts may only be invested in accordance with
the terms of the related Mortgage Loan documents or in Permitted Investments in
accordance with the provisions of Section 3.06. Servicing Accounts shall be
Eligible Accounts to the extent permitted by the terms of the related Mortgage
Loan documents. Withdrawals of amounts so deposited from a Servicing Account may
be made only to: (i) effect payment of items for which Escrow Payments were
collected and comparable items; (ii) reimburse the Trustee and then the
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 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 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the AmeriCold
Portfolio Mortgage Loan), and the applicable Master Servicer, in the case of all
other Mortgage Loans (other than the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the
AmeriCold Portfolio Mortgage Loan) (and each Companion Loan), shall maintain
accurate records with respect to each related Mortgaged Property reflecting the
status of real estate taxes, assessments and other similar items that are or may
become a lien thereon and the status of insurance premiums and any ground rents
payable in respect thereof. The Special Servicer, in the case of REO Loans
(other than any REO Loan succeeding the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and
the AmeriCold Portfolio Mortgage Loan), and the applicable Master Servicer, in
the case of all other Mortgage Loans and Companion Loans, shall use reasonable
efforts consistent with the Servicing Standards to obtain, from time to time,
all bills for the payment of such items (including renewal premiums) and shall
effect payment thereof from the REO Account or by the 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
applicable 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 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the AmeriCold Portfolio
Mortgage Loan) 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 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the AmeriCold Portfolio
Mortgage Loan) (or a Companion Loan) does not require a Mortgagor to escrow for
the payment of real estate taxes, assessments, insurance premiums, ground rents
(if applicable) and similar items, the Special Servicer, in the case of REO
Loans, and the applicable Master Servicer, in the case of all other Mortgage
Loans and Companion Loans, shall use reasonable efforts consistent with the
Servicing Standards to cause the Mortgagor to comply with its obligation to make
payments in respect of such items at the time they first become due and, in any
event, prior to the institution of foreclosure or similar proceedings with
respect to the related Mortgaged Property for nonpayment of such items.
(c) In accordance with the Servicing Standards and for all Mortgage
Loans (other than the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the AmeriCold
Portfolio Mortgage Loan) and Loan Pairs, 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, the applicable Master Servicer shall not be required to make such
advance until the later of five Business Days after such Master Servicer, the
Special Servicer or the Trustee, as the case may be, has received confirmation
that such item has not been paid or the date prior to the date after which any
penalty or interest would accrue in respect of such taxes or assessments. The
Special Servicer shall give the applicable Master Servicer and the 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 Trustee with such information in its possession as such
Master Servicer or the Trustee, as applicable, may reasonably request to enable
such Master Servicer or the Trustee, as applicable, to determine whether a
requested Servicing Advance would constitute a Nonrecoverable Advance. Any
request by 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 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 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 Servicing Advance is a Nonrecoverable Advance.
Notwithstanding the foregoing, if the Special Servicer makes a determination
that only a portion, and not all, of any previously made or proposed Servicing
Advance is a Nonrecoverable Advance, the applicable Master Servicer shall have
the right to make its own subsequent determination that any remaining portion of
any such previously made or proposed Servicing Advance is a Nonrecoverable
Advance. All such Advances shall be reimbursable in the first instance from
related collections from the Mortgagors and further as provided in Section 3.05.
No costs incurred by the 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 Paying Agent's calculation of monthly
distributions to Certificateholders, be added to the unpaid principal balances
of the related Mortgage Loans or the Companion Loans, notwithstanding that the
terms of such Mortgage Loans or the Companion Loans so permit. If the applicable
Master Servicer fails to make any required Servicing Advance as and when due
(including any applicable cure periods), to the extent the Trustee has actual
knowledge of such failure, the Trustee shall make such Servicing Advance
pursuant to Section 7.05. Notwithstanding anything herein to the contrary, no
Servicing Advance shall be required hereunder if such Servicing Advance would,
if made, constitute a Nonrecoverable Servicing Advance. In addition, the
applicable Master Servicer shall consider Unliquidated Advances in respect of
prior Servicing Advances for purposes of nonrecoverability determinations. The
Special Servicer shall have no obligation to make any Servicing Advances under
this Agreement.
Notwithstanding anything to the contrary contained in this Section
3.03(c), 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 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) 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 Trustee may elect to obtain reimbursement of Nonrecoverable
Servicing Advances from the Trust Fund pursuant to the terms of 3.19(c). The
parties acknowledge that pursuant to the 0000-XXX00 Xxxxxxx Agreement, the 000
Xxxxxxxxx Xxxxxx Master Servicer is obligated to make servicing advances with
respect to the 000 Xxxxxxxxx Xxxxxx Whole Loan. The 000 Xxxxxxxxx Xxxxxx Master
Servicer shall be entitled to reimbursement for Nonrecoverable Servicing
Advances with respect to the 000 Xxxxxxxxx Xxxxxx Whole Loan (with, in each
case, any accrued and unpaid interest thereon provided for under the 0000-XXX00
Xxxxxxx Agreement) in the manner set forth in the 0000-XXX00 Xxxxxxx Agreement
and the 000 Xxxxxxxxx Xxxxxx Intercreditor Agreement. The parties further
acknowledge that pursuant to the 2007-CIBC18 Pooling Agreement, the AmeriCold
Portfolio Master Servicer or the AmeriCold Portfolio Primary Servicer, as the
case may be, is obligated to make servicing advances with respect to the
AmeriCold Portfolio Whole Loan. The AmeriCold Portfolio Master Servicer or the
AmeriCold Portfolio Primary Servicer, as the case may be, shall be entitled to
reimbursement for Nonrecoverable Servicing Advances with respect to the
AmeriCold Portfolio Whole Loan (with, in each case, any accrued and unpaid
interest thereon provided for under the 2007-CIBC18 Pooling Agreement) in the
manner set forth in the 2007-CIBC18 Pooling Agreement and the AmeriCold
Portfolio 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 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. Subject to Section 3.19(c), each Master Servicer shall reimburse
itself or the Trustee, as the case may be, for any outstanding Servicing Advance
as soon as practically possible after funds available for such purpose are
deposited in the applicable Certificate Account subject to the applicable Master
Servicer's or the Trustee's options and rights to defer recovery of such amounts
as provided herein.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Mortgage Loan (other than
the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the AmeriCold Portfolio Mortgage
Loan), 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 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the
AmeriCold Portfolio Mortgage Loan), 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), the applicable Master Servicer shall,
in accordance with the Servicing Standards, determine whether the related
Mortgagor has failed to perform its obligations under the related Mortgage Loan
and report any such failure to the Special Servicer within a reasonable time
after the making of the request for written confirmation.
Section 3.04 The Certificate Account, the Lower-Tier and Upper-Tier
Distribution Accounts, the Companion Distribution Account, the Interest Reserve
Account and the Gain-on-Sale Reserve Account. (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) any proceeds that are received in connection with the purchase of
a Companion Loan from a securitization by the related mortgage loan
seller, which shall be paid directly to the servicer of such
securitization) together with any recovery of Unliquidated Advances in
respect of the related Mortgage Loans;
(v) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c);
(vi) any amounts required to be deposited by the applicable Master
Servicer pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the Certificate Account;
and
(vii) any amounts required to be deposited by the 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 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 Account may only be invested in Permitted
Investments in accordance with the provisions of Section 3.06. As of the Closing
Date, the Certificate Account for the Master Servicer No. 1 shall be located at
the offices of Escrow Bank, Salt Lake City, Utah, and the Certificate Account
for the Master Servicer No. 2 shall be located at the offices of 00 Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000. Each Master Servicer shall
give notice to the Trustee, the Special Servicer, the Paying Agent and the
Depositor of the new location of the Certificate Account prior to any change
thereof.
(b) The Paying Agent, on behalf of the Trustee, shall establish and
maintain the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Interest Reserve Account and the Gain-on-Sale Reserve Account in
trust for the benefit of the Certificateholders (and the Trustee as holder of
the Uncertificated Lower-Tier Interests). The applicable Master Servicer shall
deliver to the Paying Agent each month on or before the P&I Advance Date
therein, for deposit in the Lower-Tier Distribution Account, that portion of the
Available Distribution Amount attributable to the Mortgage Loans (in each case,
calculated without regard to clauses (a)(iv), (a)(viii), (c) and (d) of the
definition of Available Distribution Amount) for the related Distribution Date.
With respect to the Companion Loans (excluding the 000 Xxxxxxxxx
Xxxxxx Companion Loans and the AmeriCold Portfolio Companion Loans), each
Companion Paying Agent shall establish and maintain an account, which may be a
subaccount of the 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.
The Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, Gain-on-Sale Reserve Account, the Interest Reserve Account and the
Companion Distribution Account may be subaccounts of a single Eligible Account,
which shall be maintained as a segregated account separate from other accounts.
In addition to the amounts required to be deposited in the
Lower-Tier Distribution Account pursuant to the third preceding paragraph, each
Master Servicer shall, as and when required hereunder, deliver to the Paying
Agent for deposit in the Lower-Tier Distribution Account:
(i) any amounts required to be deposited by 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 Paying Agent for deposit in the
Lower-Tier Distribution Account the amounts required to be deposited therein
pursuant to the provisions of this Agreement (including any P&I Advance pursuant
to Section 4.03(a) hereof), such Master Servicer shall pay the Paying Agent
interest on such late payment at the Prime Rate from and including the date such
payment was required to be made (without regard to any grace period set forth in
Section 7.01(a)(i)) until (but not including) the date such late payment is
received by the Paying Agent.
The Paying Agent shall, upon receipt, deposit in the Lower-Tier
Distribution Account any and all amounts received by the Paying Agent that are
required by the terms of this Agreement to be deposited therein.
Promptly on each Distribution Date, the Paying Agent shall be deemed
to withdraw from the Lower-Tier Distribution Account and deposit in the
Upper-Tier Distribution Account an aggregate amount of immediately available
funds equal to the Lower-Tier Distribution Amount and the amount of any Yield
Maintenance Charges for such Distribution Date allocated in payment of the
Uncertificated Lower-Tier Interests as specified in Sections 4.01(b) and
4.01(d), respectively.
Funds on deposit in the Gain-on-Sale Reserve Account, the Interest
Reserve Account, the Companion Distribution Accounts, the Upper-Tier
Distribution Account and the Lower-Tier Distribution Account may be invested
and, if invested, shall be invested by, and at the risk of, the Paying Agent in
Permitted Investments selected by the Paying Agent which shall mature, unless
payable on demand, not later such time on the Distribution Date which will allow
the Paying Agent to make withdrawals from the Distribution Account, and any such
Permitted Investment shall not be sold or disposed of prior to its maturity
unless payable on demand. All such Permitted Investments shall be made in the
name of "LaSalle Bank National Association, as Trustee for the Holders of the
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-CIBC19 Trust,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC19 as their
interests may appear." None of the Trust, the Depositor, the Mortgagors, the
Master Servicers or the Special Servicer shall be liable for any loss incurred
on such Permitted Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Paying Agent as additional compensation and
shall be subject to its withdrawal at any time from time to time. The amount of
any losses incurred in respect of any such investments shall be for the account
of the Paying Agent which shall deposit the amount of such loss (to the extent
not offset by income from other investments) in the Distribution Account, as the
case may be, out of its own funds immediately as realized. If the Paying Agent
deposits in or transfers to the Distribution Account, as the case may be, any
amount not required to be deposited therein or transferred thereto, it may at
any time withdraw such amount or retransfer such amount from the Distribution
Account, as the case may be, any provision herein to the contrary
notwithstanding.
As of the Closing Date, the Interest Reserve Account, the Upper-Tier
Distribution Account and the Lower-Tier Distribution Account shall be located at
the offices of the Paying Agent. The Paying Agent shall give notice to the
Trustee, the Master Servicers and the Depositor of the location of the Interest
Reserve Account, the Upper-Tier Distribution Account, the Lower-Tier
Distribution Account and, if established, the Gain-on-Sale Reserve Account and
of the proposed location of such accounts prior to any change thereof.
(c) [Reserved].
(d) The Paying Agent shall establish (upon notice from the Special
Servicer of an event occurring that generates Gain-on-Sale Proceeds) and
maintain the Gain-on-Sale Reserve Account in trust for the benefit of the
Certificateholders. The Gain-on-Sale Reserve Account shall be maintained as an
Eligible Account (or as a subaccount of an Eligible Account), separate and apart
from trust funds for mortgage pass-through certificates of other series
administered by the Paying Agent.
Upon the disposition of any REO Property in accordance with Section
3.09 or Section 3.18, the Special Servicer will calculate the Gain-on-Sale
Proceeds, if any, realized in connection with such sale and remit such funds to
the Paying Agent for deposit into the Gain-on-Sale Reserve Account, other than
Gain-on-Sale Proceeds allocable to the Companion Loans, which shall be remitted
to the Companion Paying Agent for deposit into the Companion Distribution
Account.
Section 3.05 Permitted Withdrawals from the Certificate Accounts,
the Distribution Accounts and the Companion Distribution Account. (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 Paying Agent for deposit in the Lower-Tier
Distribution Account the amounts required to be remitted pursuant to the
first paragraph of Section 3.04(b) or that may be applied to make P&I
Advances pursuant to Section 4.03(a); and (B) pursuant to the second
paragraph of Section 3.04(b), to remit to the Companion Paying Agent for
deposit in the 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, 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 (provided that, in the case of
such payment relating to an AB Mortgage Loan, such payment shall be made
first, from amounts collected on the related Companion Loan and then from
the related Mortgage Loan, subject to the terms of the related
Intercreditor Agreement, and then out of general collections on the
Mortgage Loans and REO Properties;
(iii) to reimburse the Trustee and itself, as applicable (in that
order), for xxxxxxxxxxxx X&X Advances, the applicable Master Servicer's or
the Trustee's right to reimbursement pursuant to this clause (iii) being
limited to amounts received which represent Late Collections of interest
(net of the related Servicing Fee) on and principal of the particular
Mortgage Loans and REO Loans with respect to which such P&I Advances were
made; provided, 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 the Certificate Account from time to time that represent
collections or recoveries of principal to the extent provided in clause
(v) below (to be allocated between the Loan Groups as set forth in the
last paragraph of Section 3.05(a)); provided, further, that if such
Advance becomes a Nonrecoverable Advance, then such Advance shall be
reimbursable pursuant to clause (v) below;
(iv) to reimburse the Trustee, the Special Servicer and itself, as
applicable (in that order), for unreimbursed Servicing Advances, the
applicable Master Servicer's, the Special Servicer's or the Trustee's
respective rights to receive payment pursuant to this clause (iv) with
respect to any Mortgage Loan (other than the 000 Xxxxxxxxx Xxxxxx Mortgage
Loan and the AmeriCold Portfolio Mortgage Loan), Companion Loan or REO
Property being limited to, as applicable, related payments, Liquidation
Proceeds, Insurance and Condemnation Proceeds and REO Revenues (provided
that, in case of such reimbursement relating to an AB Mortgage Loan, such
reimbursements shall be made first, from amounts collected on the related
Companion Loan and then from the related Mortgage Loan in accordance with
the terms of the related Intercreditor Agreement; provided, however, that
if such Servicing Advance becomes a Workout Delayed Reimbursement Amount,
then such Servicing Advance shall thereafter be reimbursed from the
portion of general collections and recoveries on or in respect of the
Mortgage Loans and REO Properties on deposit in the Certificate Account
from time to time that represent collections or recoveries of principal to
the extent provided in clause (v) below (to be allocated between the Loan
Groups as set forth in the last paragraph of Section 3.05(a)); provided,
further, that if such Advance becomes a Nonrecoverable Advance, then such
Advance shall be reimbursable pursuant to clause (v) below;
(v) to reimburse the Trustee, the Special Servicer and itself, as
applicable (in that order) (1) for Nonrecoverable Advances first, out of
REO Revenues, Liquidation Proceeds and Insurance and Condemnation Proceeds
received on the related Mortgage Loan and Companion Loan (with respect to
such Companion Loan, only for Nonrecoverable Servicing Advances), then,
out of the principal portion of general collections on the Mortgage Loans
and REO Properties (to be allocated between the Loan Groups as set forth
in the last paragraph of Section 3.05(a)), then, to the extent the
principal portion of general collections is insufficient and with respect
to such excess only, subject to any exercise of the sole option to defer
reimbursement thereof pursuant to Section 3.19(c), out of other
collections on the Mortgage Loans and REO Properties (to be allocated
between the Loan Groups as set forth in the last paragraph of Section
3.05(a)) and, (2) with respect to the Workout-Delayed Reimbursement
Amounts, out of the principal portion of the general collections on the
Mortgage Loans and REO Properties (to be allocated between the Loan Groups
as set forth in the last paragraph of Section 3.05(a)) net of such amounts
being reimbursed pursuant to (1) above (provided that, in case of such
reimbursement relating to an AB Mortgage Loan and/or a Companion Loan
related thereto, such reimbursement shall be made first, from amounts
collected on the related Companion Loan and then from the related Mortgage
Loan in accordance with the terms of the related Intercreditor Agreement;
(vi) at such time as it reimburses the Trustee and itself, as
applicable (in that order) for (a) any xxxxxxxxxxxx X&X Advance (including
any such P&I Advance that constitutes a Workout-Delayed Reimbursement
Amount) pursuant to clause (iii) above, to pay itself and/or the Trustee
or such other servicing party, as applicable, any interest accrued and
payable thereon in accordance with Sections 4.03(d) and 3.11(c), (b) any
unreimbursed Servicing Advances (including any such Servicing Advance that
constitutes a Workout-Delayed Reimbursement Amount) pursuant to clause
(iv) above, to pay itself or the Trustee or such servicing party, as the
case may be, any interest accrued and payable thereon in accordance with
Sections 3.03(d) and 3.11(c) or (c) any Nonrecoverable Advances pursuant
to clause (v) above, to pay itself or the Trustee or such other servicing
party, as the case may be, any interest accrued and payable thereon;
(vii) to reimburse itself, the Special Servicer or the Trustee, as
the case may be, for any unreimbursed expenses reasonably incurred by such
Person in respect of any Breach or Defect giving rise to a repurchase or
substitution obligation of the applicable Mortgage Loan Seller under
Section 6 of the applicable Mortgage Loan Purchase Agreement, including,
without limitation, any expenses arising out of the enforcement of the
repurchase or substitution obligation, each such Person's right to
reimbursement pursuant to this clause (vii) with respect to any Mortgage
Loan or Companion Loan being limited to that portion of the Purchase Price
or Substitution Shortfall Amount paid with respect to such Mortgage Loan
or Companion Loan that represents such expense in accordance with clause
(iv) of the definition of Purchase Price; provided that, in case of such
reimbursement relating to an AB Mortgage Loan, such reimbursements shall
be made first, from amounts collected on the related Companion Loan and
then from the related AB Mortgage Loan to the extent provided in the
related Intercreditor Agreement;
(viii) in accordance with Section 2.03(e), to reimburse itself or
the Special Servicer, as the case may be, first, out of Liquidation
Proceeds, Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties, for any unreimbursed
expense reasonably incurred by such Person in connection with the
enforcement of the applicable Mortgage Loan Seller's obligations under
Section 6 of the applicable Mortgage Loan Purchase Agreement, but only to
the extent that such expenses are not reimbursable pursuant to clause
(vii) above or otherwise (provided that, in case of such reimbursement out
of Liquidation Proceeds, and Insurance and Condemnation Proceeds described
above relating to an AB Mortgage Loan, such reimbursements shall be made
first, from amounts collected on the related Companion Loan and then from
general collections on the Mortgage Loans in accordance with the terms of
the related Intercreditor Agreement);
(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 an AB Mortgage Loan, such
reimbursements shall be made first, from amounts collected on the related
Companion Loan and then from the related Mortgage Loan in accordance with
the terms of the related Intercreditor Agreement);
(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 Distribution Date to
and including the P&I Advance Date related to such Distribution Date) and
(B) Penalty Charges (other than Penalty Charges collected while the
related Mortgage Loan is a Specially Serviced Mortgage Loan), but only to
the extent collected from the related Mortgagor and to the extent that all
amounts then due and payable with respect to the related Mortgage Loan
have been paid and such Penalty Charges are not needed to pay interest on
Advances or costs and expenses incurred by the Trust Fund (other than
Special Servicing Fees) in accordance with Section 3.11(d); and (b) to pay
the Special Servicer, as additional servicing compensation in accordance
with Section 3.11(c), Penalty Charges collected on Specially Serviced
Mortgage Loans (but only to the extent collected from the related
Mortgagor and to the extent that all amounts then due and payable with
respect to the related Specially Serviced Mortgage Loan have been paid and
such Penalty Charges are not needed to pay interest on Advances or costs
and expenses incurred by the Trust Fund in accordance with Section
3.11(d));
(xi) to recoup any amounts deposited in the applicable Certificate
Account in error;
(xii) to pay itself, the Special Servicer, the Depositor or any of
their respective directors, officers, members, managers, employees and
agents, as the case may be, out of general collections, any amounts
payable to any such Person pursuant to Section 6.03(a) or 6.03(b)
(provided that, in case of such payments relating to an AB Mortgage Loan,
such reimbursements shall be made first, from amounts collected on the
related Companion Loan and then from the related Mortgage Loan in
accordance with the terms of the related Intercreditor Agreement prior to
being payable out of general collections);
(xiii) to pay for (a) the cost of the Opinions of Counsel
contemplated by Sections 3.09(b), 3.16(a), 3.17(b), 3.20(a), 3.20(d) and
10.01(f) to the extent payable out of the Trust Fund, (b) the cost of any
Opinion of Counsel contemplated by Section 12.01(a) or 12.01(c) in
connection with an amendment to this Agreement requested by the Trustee or
the 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 an AB Mortgage Loan, such reimbursements
shall be made first, from amounts collected on the related Companion Loan
and then from the amounts collected on the related Mortgage Loan and
available on deposit in the Certificate Account in accordance with the
terms of the related Intercreditor Agreement prior to being payable out of
general collections);
(xiv) to pay out of general collections on the Mortgage Loans and
REO Properties any and all federal, state and local taxes imposed on the
Upper-Tier REMIC, the Lower-Tier REMIC, or any of their assets or
transactions, together with all incidental costs and expenses, to the
extent that none of the Master Servicers, the Special Servicer, the Paying
Agent or the Trustee is liable therefor pursuant to Section 10.01(g);
(xv) to reimburse the Trustee and the Paying Agent out of general
collections on the Mortgage Loans and REO Properties for expenses incurred
by and reimbursable to it by the Trust Fund pursuant to Section 10.01(c);
(xvi) to pay the applicable Mortgage Loan Seller or any other
Person, with respect to each Mortgage Loan, if any, previously purchased
by such Person pursuant to this Agreement, all amounts received thereon
subsequent to the date of purchase relating to periods after the date of
purchase; or, in the case of the substitution for a Mortgage Loan by a
Mortgage Loan Seller pursuant to Section 2.03(b), to pay such Mortgage
Loan Seller with respect to the replaced Mortgage Loan all amounts
received thereon subsequent to the date of substitution, and with respect
to the related Qualified Substitute Mortgage Loan(s), all Monthly Payments
due thereon during or prior to the month of substitution, in accordance
with the last two sentences of the first paragraph of Section 2.03(b);
(xvii) to remit to the Paying Agent for deposit in the Interest
Reserve Account the amounts required to be deposited in the Interest
Reserve Account pursuant to Section 3.25;
(xviii) to clear and terminate the 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 Section 3.04(b) without duplication of amounts
remitted to the Companion Paying Agent pursuant to clause (i) above; and
(xx) to pay for any expenditures to be borne by the Trust Fund
pursuant to the second paragraph of Section 3.03(c).
The 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 the 000
Xxxxxxxxx Xxxxxx Master Servicer, 000 Xxxxxxxxx Xxxxxx Special Servicer, 000
Xxxxxxxxx Xxxxxx Trustee or 000 Xxxxxxxxx Xxxxxx Co-Trustee by the holder of the
000 Xxxxxxxxx Xxxxxx Mortgage Loan pursuant to the 000 Xxxxxxxxx Xxxxxx
Intercreditor Agreement and the 0000-XXX00 Xxxxxxx Agreement.
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 the
AmeriCold Portfolio Master Servicer, AmeriCold Portfolio Special Servicer,
AmeriCold Portfolio Primary Servicer, or AmeriCold Portfolio Trustee by the
holder of the AmeriCold Portfolio Mortgage Loan pursuant to the AmeriCold
Portfolio Intercreditor Agreement and the 2007-CIBC18 Pooling 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 or the Paying
Agent 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 Paying Agent describing the
item and amount to which the Special Servicer or the Paying Agent 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);
provided, however, that this provision shall not result in any change in the
interest distributions required under Section 4.01(a)(i) of this Agreement.
(b) The Paying Agent, on behalf of the Trustee, may, from time to
time, make withdrawals from the Lower-Tier Distribution Account for any of the
following purposes:
(i) to be deemed to make deposits of the Lower-Tier Distribution
Amount pursuant to Section 4.01(b) and the amount of any Yield Maintenance
Charges distributable pursuant to Section 4.01(d) in the Upper-Tier
Distribution Account and to make distributions on the Class LR
Certificates pursuant to Section 4.01(b);
(ii) to pay to the Trustee and the Paying Agent or any of their
directors, officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person, with respect to the Mortgage
Loans, pursuant to Section 8.05(b);
(iii) to pay the Trustee, the Trustee Fee as contemplated by Section
8.05(a) hereof with respect to the Mortgage Loans;
(iv) to pay for the cost of the Opinions of Counsel sought by the
Trustee or the Paying Agent (A) as provided in clause (v) of the
definition of "Disqualified Organization," (B) as contemplated by Section
3.20(d), 8.02(ii) and 10.01(f), or (C) as contemplated by Section 12.01(a)
or 12.01(c) in connection with any amendment to this Agreement requested
by the Trustee or the Paying Agent, which amendment is in furtherance of
the rights and interests of Certificateholders, in each case, to the
extent not paid pursuant to Section 12.01(g);
(v) to pay any and all federal, state and local taxes imposed on
either the Lower-Tier REMIC or Upper-Tier REMIC or on the assets or
transactions of any such REMIC, together with all incidental costs and
expenses, to the extent none of the Trustee, the Paying Agent, the REMIC
Administrator, the applicable Master Servicer or the Special Servicer is
liable therefor pursuant to Section 10.01(g);
(vi) to pay the REMIC Administrator any amounts reimbursable to it
pursuant to Section 10.01(e);
(vii) to pay to the applicable Master Servicer any amounts deposited
by such Master Servicer in the Distribution Account not required to be
deposited therein; and
(viii) to clear and terminate the Lower-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(c) [Reserved].
(d) The Paying Agent on behalf of the Trustee may make, or be deemed
to make, withdrawals from the Upper-Tier Distribution Account for any of the
following purposes:
(i) to make distributions to Certificateholders (other than Holders
of the Class LR Certificates) on each Distribution Date pursuant to
Section 4.01 or 9.01, as applicable, subject to the penultimate paragraph
of Section 3.04(b);
(ii) to clear and terminate the Upper-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(e) Notwithstanding anything herein to the contrary, with respect to
any Mortgage Loan, (i) if amounts on deposit in 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 listed in
Section 3.05(b)(ii) and (iii), then the Trustee Fee shall be paid in full prior
to the payment of any Servicing Fees payable under Section 3.05(a)(ii) and in
the event that amounts on deposit in any Certificate Account and the Lower-Tier
Distribution Account are not sufficient to pay the full amount of such Trustee
Fee, the Trustee shall be paid based on the amount of such fees and (ii) if
amounts on deposit in 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 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(j).
Section 3.06 Investment of Funds in the Certificate Accounts 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") 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) or the Special
Servicer (in the case of the REO Account or any Servicing Account maintained by
or for the Special Servicer) on behalf of the Trustee, shall maintain continuous
physical possession of any Permitted Investment of amounts in each Certificate
Account, Companion Distribution Account, the Servicing Accounts or REO Account,
as applicable, that is either (i) a "certificated security," as such term is
defined in the UCC (such that the Trustee shall have control pursuant to Section
8-106 of the UCC) or (ii) other property in which a secured party may perfect
its security interest by physical possession under the UCC or any other
applicable law. In the case of any Permitted Investment held in the form of a
"security entitlement" (within the meaning of Section 8-102(a)(17) of the UCC),
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
each Certificate Account, Companion Distribution Account, or any Servicing
Account maintained by or for such Master Servicer) or the Special Servicer (in
the case of the REO Account or any Servicing Account maintained by or for the
Special Servicer) shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (a) all amounts then payable thereunder and (b) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the 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 Distribution Date to and including the
P&I Advance Date related to such Distribution Date, shall be for the sole and
exclusive benefit of such Master Servicer to the extent (with respect to
Servicing Accounts) not required to be paid to the related Mortgagor and shall
be subject to its withdrawal, or withdrawal at its direction, in accordance with
Section 3.03 or Section 3.05(a), as the case may be. Interest and investment
income realized on funds deposited in the REO Account or any Servicing Account
maintained by or for the Special Servicer, to the extent of the Net Investment
Earnings, if any, with respect to such account for each period from and
including any Distribution Date to and including the immediately succeeding P&I
Advance Date, shall be for the sole and exclusive benefit of the Special
Servicer and shall be subject to its withdrawal in accordance with Section
3.16(c). In the event that any loss shall be incurred in respect of any
Permitted Investment (as to which the applicable Master Servicer or Special
Servicer, as applicable, would have been entitled to any Net Investment Earnings
hereunder) directed to be made by the applicable Master Servicer or Special
Servicer, as applicable, and on deposit in any of the Certificate Account,
Companion Distribution Account, the Servicing Account or the REO 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) and
the Special Servicer (in the case of the REO Account or any Servicing Account
maintained by or for the Special Servicer) shall deposit therein, no later than
the P&I Advance Date, without right of reimbursement, the amount of Net
Investment Loss, if any, with respect to such account for the period from and
including the prior Distribution Date to and including the P&I Advance Date
related to such Distribution Date, provided that neither the applicable Master
Servicer nor the Special Servicer shall be required to deposit any loss on an
investment of funds in an Investment Account if such loss is incurred solely as
a result of the insolvency of the federal or state chartered depository
institution or trust company that holds such Investment Account, so long as such
depository institution or trust company satisfied the qualifications set forth
in the definition of Eligible Account at the time such investment was made (and,
with respect to 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 and the Specially Serviced Mortgage Loans other than the 000
Xxxxxxxxx Xxxxxx Mortgage Loan and the AmeriCold Portfolio Mortgage Loan) or the
Special Servicer (with respect to REO Properties other than the 000 Xxxxxxxxx
Xxxxxx Mortgaged Property and the AmeriCold Portfolio Mortgaged Property) shall
use its efforts consistent with the Servicing Standards to cause the Mortgagor
to maintain (other than with respect to the 000 Xxxxxxxxx Xxxxxx Mortgage Loan
and the AmeriCold Portfolio Mortgage Loan), to the extent required by the terms
of the related Mortgage Loan documents all insurance coverage as is required
under the related Mortgage Loan except to the extent that the failure of the
related Mortgagor to do so is an Acceptable Insurance Default. If the Mortgagor
does not so maintain such insurance coverage, subject to its recoverability
determination with respect to any required Servicing Advance, the applicable
Master Servicer (with respect to Mortgage Loans other than the 000 Xxxxxxxxx
Xxxxxx Mortgage Loan and the AmeriCold Portfolio Mortgage Loan) or the Special
Servicer (with respect to REO Properties other than the 000 Xxxxxxxxx Xxxxxx
Mortgaged Property and the AmeriCold Portfolio Mortgaged Property) shall
maintain all insurance coverage as is required under the related Mortgage, but
only in the event the Trustee has an insurable interest therein and such
insurance is available to 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 the Mortgage Loans and the Specially
Serviced Mortgage Loans other than the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and
the AmeriCold Portfolio Mortgage Loan) or the Special Servicer (with respect to
REO Properties other than the 000 Xxxxxxxxx Xxxxxx Mortgaged Property and the
AmeriCold Portfolio Mortgaged Property) except to the extent that the failure of
the related Mortgagor to do so is an Acceptable Insurance Default; provided,
however, that if any Mortgage permits the holder thereof to dictate to the
Mortgagor the insurance coverage to be maintained on such Mortgaged Property,
the applicable Master Servicer or the Special Servicer, as applicable, shall
impose such insurance requirements as are consistent with the Servicing
Standards taking into account the insurance in place at the closing of the
Mortgage Loan, provided that, with respect to the immediately preceding proviso,
such Master Servicer will be obligated to use reasonable efforts to cause the
Mortgagor to maintain (or to itself maintain) insurance against property damage
resulting from terrorist or similar acts unless the Mortgagor's failure is an
Acceptable Insurance Default as determined by the Special Servicer (with the
consent of the Directing Certificateholder) and only in the event the Trustee
has an insurable interest therein and such insurance is available to such Master
Servicer and, if available, can be obtained at commercially reasonable rates.
The applicable Master Servicer will be entitled to rely on insurance consultants
(at such Master Servicer's expense) in determining whether any insurance is
available at commercially reasonable rates. Subject to Section 3.17(a) and the
costs of such insurance being reimbursed or paid to the Special Servicer as
provided in the last sentence of this paragraph, the Special Servicer shall
maintain for each REO Property (other than the 000 Xxxxxxxxx Xxxxxx Mortgaged
Property and the AmeriCold Portfolio Mortgaged Property) no less insurance
coverage than was previously required of the Mortgagor under the related
Mortgage Loan and Companion Loan unless the Special Servicer, with Directing
Certificateholder consent, determines that such insurance is not available at
commercially reasonable rates. All Insurance Policies maintained by the Master
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) be issued by a Qualified Insurer authorized under
applicable law to issue such Insurance Policies. Any amounts collected by the
applicable Master Servicer under any such Insurance Policies (other than amounts
to be applied to the restoration or repair of the related Mortgaged Property or
REO Property or amounts to be released to the related Mortgagor, in each case in
accordance with the Servicing Standards and the provisions of the related
Mortgage Loan and Companion Loan) shall be deposited in the Certificate Account,
subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the
applicable Master Servicer in maintaining any such Insurance Policies in respect
of Mortgage Loans and Companion Loans (other than REO Properties) (i) if the
Mortgagor defaults on its obligation to do so, shall be advanced by the
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, be added to the unpaid principal balance of
the related Mortgage Loan and Companion Loan, notwithstanding that the terms of
such Mortgage Loan or Companion Loan so permit. Any cost incurred by the Special
Servicer in maintaining any such Insurance Policies with respect to REO
Properties shall be an expense of the Trust payable out of the related REO
Account pursuant to Section 3.16(c) or, if the amount on deposit therein is
insufficient therefor, advanced by the applicable Master Servicer as a Servicing
Advance.
Notwithstanding the foregoing, with respect to the Mortgage Loans
(other than the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the AmeriCold Portfolio
Mortgage Loan) that either (x) require the Mortgagor to maintain "all risk"
property insurance (and do not expressly permit an exclusion for terrorism) or
(y) contain provisions generally requiring the applicable Mortgagor to maintain
insurance in types and against such risks as the holder of such Mortgage Loan
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 that any
insurance policy contains Additional Exclusions or if it has knowledge that any
Mortgagor fails to purchase the insurance requested to be purchased by the
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 be required to
notify the applicable Master Servicer and such Master Servicer shall use efforts
consistent with the Servicing Standard to cause the Mortgagor to maintain such
insurance. Furthermore, the Special Servicer or the applicable Master Servicer,
as the case may be, shall inform the Rating Agencies as to such conclusions for
those Mortgage Loans that (i) have one of the ten (10) highest outstanding
Stated Principal Balances of all of the Mortgage Loans then included in the
Trust or (ii) comprise more than 5% of the outstanding Stated Principal Balance
of the Mortgage Loans then included in the Trust. During the period that the
Special Servicer or the applicable Master Servicer, as the case may be, is
evaluating the availability of such insurance, none of the Master Servicers, the
Special Servicer or the Directing Certificateholder will be liable for any loss
related to its failure to require the Mortgagor to maintain such insurance and
will not be in default of its obligations as a result of such failure and such
Master Servicer will not itself maintain such insurance or cause such insurance
to be maintained.
(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 or REO
Properties (other than with respect to the 000 Xxxxxxxxx Xxxxxx Mortgaged
Property and the AmeriCold Portfolio 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, 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 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 applicable, 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 applicable, is rated at
least "Baa3" by Xxxxx'x and "A" by S&P, the applicable 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 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. The Directing
Certificateholder shall have no liability with respect to such determination.
Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid
principal balance of the related Mortgage Loan or Companion Loan, and (ii) the
maximum amount of insurance which is available under the National Flood
Insurance Act of 1968, as amended. If the cost of any insurance described above
is not borne by the Mortgagor, the 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 000 Xxxxxxxxx Xxxxxx Mortgaged Property and the AmeriCold
Portfolio 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) As to each Mortgage Loan (other than the 000 Xxxxxxxxx Xxxxxx
Mortgage Loan and the AmeriCold Portfolio Mortgage Loan) or Companion Loan which
contains a provision in the nature of a "due-on-sale" clause, which by its
terms:
(i) provides that such Mortgage Loan or Companion Loan shall (or may
at the mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property or equity
interests in the Mortgagor or principals of the Mortgagor; or
(ii) provides that such Mortgage Loan or Companion Loan may not be
assumed without the consent of the mortgagee in connection with any such
sale or other transfer,
then, for so long as such Mortgage Loan or Companion Loan is being serviced
under this Agreement, the Special Servicer or, with respect to all Non-Specially
Serviced Mortgage Loans, the 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) 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
(unless earlier objected to) by the Special Servicer from such Master Servicer
of such Master Servicer's written analysis and recommendation with respect to
such waiver or exercise of such right together with such other information
reasonably required by the Special Servicer, (ii) with respect to all Specially
Serviced Mortgage Loans and Non-Specially Serviced Mortgage Loans, the Special
Servicer shall, prior to consenting to such a proposed action of 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 (unless earlier objected to) by the Directing Certificateholder of such
Master Servicer's and/or Special Servicer's, as the case may be, analysis and
recommendation with respect to such waiver together with such other information
reasonably required by the Directing Certificateholder, and (iii) with respect
to any Mortgage Loan, together with any other Mortgage Loans
cross-collateralized with such Mortgage Loan, or together with all other
Mortgage Loans with the same or an affiliated Mortgagor (x) with a Stated
Principal Balance greater than or equal to $20,000,000, (y) with a Stated
Principal Balance greater than 5% of the aggregate Stated Principal Balance of
all the Mortgage Loans then outstanding or (z) together with any other Mortgage
Loans cross-collateralized with such Mortgage Loan, or together with all other
Mortgage Loans with the same or an affiliated Mortgagor, is one of the ten
largest of the then outstanding Mortgage Loans, by Stated Principal Balance, the
applicable Master Servicer or the Special Servicer, as applicable, shall not
take such action unless it has obtained confirmation from each Rating Agency
stating that none of the then-current rating or ratings of all outstanding
Classes of the Certificates would be qualified, downgraded or withdrawn by such
Rating Agency, as a result of such waiver.
If any Mortgage Loan (other than the 000 Xxxxxxxxx Xxxxxx Mortgage
Loan and the AmeriCold Portfolio Mortgage Loan) or Companion Loan provides that
such Mortgage Loan or Companion Loan may be assumed or transferred without the
consent of the mortgagee provided that certain conditions are satisfied, then
for so long as such Mortgage Loan or Companion Loan is being serviced under this
Agreement, the Special Servicer, with respect to all Specially Serviced Mortgage
Loans (other than the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the AmeriCold
Portfolio Mortgage Loan), on behalf of the Trustee as the mortgagee of record,
shall determine in accordance with the Servicing Standards whether such
conditions have been satisfied, or, with respect to any Non-Specially Serviced
Mortgage Loan (other than the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the
AmeriCold Portfolio Mortgage Loan) which does not allow the mortgagee discretion
in approving a transfer or assumption or allow for discretion in determining
whether conditions to a transfer or assumption have been satisfied, the
applicable Master Servicer, on behalf of the Trustee as mortgagee of record,
shall make such determination with respect to whether such conditions have been
satisfied.
Notwithstanding anything herein to the contrary, the applicable
Master Servicer shall approve and close, without the consent of the Special
Servicer, all initial syndications of tenant-in-common interests, provided such
syndications are specifically permitted by and in accordance with the related
loan documents for any Mortgage Loan (other than a non-serviced Mortgage Loan)
or serviced whole loan, that is not a Specially Serviced Mortgage Loan. Upon
completion of the initial transfer(s) pursuant to such a syndication, the
applicable Master Servicer shall promptly provide notice thereof by electronic
mail to the Special Servicer and the Directing Certificateholder, which notice
shall also advise the Special Servicer and the Directing Certificateholder as to
(i) the total number of transfers with respect to such Mortgage Loan or serviced
whole Loan that such Master Servicer has approved and closed as of the date of
such initial transfers(s) and (ii) the expiration date (if any) by which all
such transfer(s) pursuant to such syndication must occur pursuant to the related
loan documents. Upon the earlier of the completion of the initial syndication or
the expiration date (if any) for which such initial notice was provided, the
applicable Master Servicer shall promptly provide notice by electronic mail to
the Special Servicer and the Directing Certificateholder advising as to (i)
whether such tenant-in-common syndication is complete and (ii) the total number
of transfers with respect to such Mortgage Loan or serviced whole loan that such
Master Servicer has approved and closed as of such expiration or completion
date. Any request for a modification to or extension of the final initial
syndication date respecting any such tenant-in-common transfers or increase in
the permitted number of tenant-in-common interests under the initial syndication
shall be processed and approved solely by the Special Servicer, who shall
promptly notify the Directing Certificateholder of any such modification or
extension.
(b) As to each Mortgage Loan (other than the 000 Xxxxxxxxx Xxxxxx
Mortgage Loan and the AmeriCold Portfolio Mortgage Loan) and Companion Loan
which contains a provision in the nature of a "due-on-encumbrance" clause, which
by its terms:
(i) provides that such Mortgage Loan and Companion Loan shall (or
may at the mortgagee's option) become due and payable upon the creation of
any additional lien or other encumbrance on the related Mortgaged Property
or equity interests in the Mortgagor or principals of the Mortgagor; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property;
then, for so long as such Mortgage Loan and Companion Loan 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
fifteen (15) Business Days after receipt (unless earlier objected to) by the
Special Servicer from the applicable Master Servicer of such Master Servicer's
analysis and recommendation with respect to such waiver or exercise of such
right together with such other information reasonably required by the Special
Servicer and (b) the applicable Master Servicer or the Special Servicer, as the
case may be, has obtained (i) the prior written consent of the Directing
Certificateholder, which consent shall be deemed given 10 Business Days after
receipt by the Directing Certificateholder of the applicable Master Servicer's
and/or Special Servicer's, as applicable, written analysis and recommendation
with respect to such waiver together with such other information reasonably
required by the Directing Certificateholder, and (ii) from each Rating Agency a
confirmation that such waiver would not result in the downgrade, withdrawal or
qualification of the then-current ratings on any Class of outstanding
Certificates if such Mortgage Loan (1) (together with any other Mortgage Loans
cross-collateralized with such Mortgage Loan) has an outstanding principal
balance that is greater than or equal to 2% of the Stated Principal Balance of
the outstanding Mortgage Loans or (2) has an LTV Ratio (including existing and
proposed debt) greater than 85% (including any proposed debt) or (3) a Debt
Service Coverage Ratio less than 1.20x (in each case, determined based upon the
aggregate of the Stated Principal Balance of the Mortgage Loan and the principal
amount of the proposed additional loan) or (4) is one of the ten (10) largest
Mortgage Loans (by Stated Principal Balance) or (5) has a Stated Principal
Balance over $20,000,000.
If any Mortgage Loan or Companion Loan provides that such Mortgage
Loan or Companion Loan may be further encumbered without the consent of the
mortgagee provided that certain conditions are satisfied and there is no lender
discretion with respect to the satisfaction of such conditions, then for so long
as such Mortgage Loan or Companion Loan is being serviced under this Agreement,
the Special Servicer, with respect to all Specially Serviced Mortgage Loans
(other than the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the AmeriCold Portfolio
Mortgage Loan), on behalf of the Trustee as the mortgagee of record, shall
determine whether such conditions have been satisfied, or, with respect to all
Non-Specially Serviced Mortgage Loans, the applicable Master Servicer, on behalf
of the Trustee as mortgagee of record, shall make such determination with
respect to whether such conditions have been satisfied.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(d) Except as otherwise permitted by Sections 3.20 and 3.08(a), (b)
and (e), neither the Master 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
Master Servicers and the Special Servicer shall each provide copies of any
waivers it effects pursuant to Section 3.08(a) or (b) to the Master Servicer 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 it
effects pursuant to Section 3.08(a) or (b) to the Special Servicer and each
Rating Agency with respect to each Mortgage Loan.
(e) Notwithstanding any other provisions of this Section 3.08 or
Section 3.20, the applicable Master Servicer may with respect to Non-Specially
Serviced Mortgage Loans, without any Directing Certificateholder approval,
Rating Agency confirmation or Special Servicer approval (provided such Master
Servicer delivers notice thereof to the Special Servicer and the Directing
Certificateholder, except to the extent that the Special Servicer or the
Directing Certificateholder, as the case may be, notifies such Master Servicer
that such party does not desire to receive copies of such items):
(i) approve routine leasing activity with respect to: (1) leases for
properties for less than the lesser of (a) 15,000 square feet and (b) 20%
of the related Mortgaged Property; provided that no such lease is a Ground
Lease, no subordination, non-disturbance and attornment agreement (an
"SNDA") exists with respect to such lease); and provided further that,
such Master Servicer shall not grant or approve (but shall forward to the
Special Servicer for its approval) any requests for (or any waiver,
consent, approval, amendment or modification in connection with) an SNDA
or approval of a lease that contains an SNDA;
(ii) approve annual budgets for the related Mortgaged Property;
provided that no such budget (1) relates to a fiscal year in which an
anticipated repayment date occurs, (2) provides for the payment of
operating expenses in an amount equal to more than 110% of the amounts
budgeted therefor for the prior year or (3) provides for the payment of
any material expenses to any affiliate of the Mortgagor (other than the
payment of a management fee to any property manager if such management fee
is no more than the management fee in effect on the Cut-off Date);
(iii) subject to other restrictions herein regarding Principal
Prepayments, waive any provision of a Mortgage Loan requiring a specified
number of days notice prior to a Principal Prepayment;
(iv) with respect to any Non-Specially Serviced Mortgage Loans (or
serviced Companion Loans), such Master Servicer may (without the consent
of the Special Servicer) grant a Mortgagor's request for consent to
subject the related Mortgaged Property to an easement, right-of-way or
similar agreement for utilities, access, parking, public improvements or
another similar purpose and may consent to subordination of the related
Mortgage Loan(s) (or serviced Companion Loan(s)) to such easement,
right-of-way or similar agreement; provided that such Master Servicer
shall have determined (i) in accordance with the Servicing Standard that
such easement, right-of-way or similar agreement will not materially
interfere with the then-current use of the related Mortgaged Property or
the security intended to be provided by such Mortgage and will not
materially or adversely affect the value of such Mortgaged Property and
(ii) that the Upper-Tier REMIC or the Lower-Tier REMIC will not fail to
qualify as a REMIC as a result thereof and that no tax on "prohibited
transactions" or "contributions" after the Closing Date would be imposed
on the Upper-Tier REMIC or the Lower-Tier REMIC as a result thereof; and
(v) consent to changing the property manager at the request of the
Mortgagor, for so long as, (A) the successor property manager is not
affiliated with the Mortgagor and is a reputable manager of similar
properties and (B) the related Mortgage Loan has an unpaid principal
balance of less than $5,000,000;
provided that any such modification, waiver or amendment (w) would
not in any way affect a payment term of the Certificates, (x) would not
constitute a "significant modification" of such Mortgage Loan or Companion Loan
pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise
cause either the Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a
REMIC, (y) agreeing to such modification, waiver or amendment would be
consistent with the Servicing Standards, and (z) agreeing to such modification,
waiver or amendment shall not violate the terms, provisions or limitations of
this Agreement or any Intercreditor Agreement; provided, further, that if in the
reasonable judgment of such Master Servicer any request by a Mortgagor for
consent of the mortgagee or any modification, waiver or amendment in connection
with an assumption transaction of a Non-Specially Serviced Mortgage Loan
contemplated by this Section 3.08 is not included within the scope of this
clause (e), such Master Servicer shall forward the Mortgagor's request along
with its written analysis and recommendation to the Special Servicer for its
approval; provided, further, that with respect to any Non-Specially Serviced
Mortgage Loan set forth in Schedule 4 hereto and any request for the
disbursement of any earnouts or holdback amounts with respect to such
Non-Specially Serviced Mortgage Loan, it being understood and agreed that for
purposes of this Agreement, the disbursement of earnouts or holdback amounts
shall mean the disbursement or funding to a Mortgagor of previously unfunded,
escrowed or otherwise reserved portions of loan proceeds of the applicable
Non-Specially Serviced Mortgage Loan, such Master Servicer shall forward the
Mortgagor's request along with its written analysis and recommendation to the
Special Servicer for approval (which request shall be deemed approved if the
request is not denied by the Special Servicer in writing to such Master Servicer
within ten (10) Business Days of the Special Servicer's receipt of such
request). The foregoing is intended to be an itemization of certain actions such
Master Servicer may take without having to obtain the approval of any other
party and is not intended to limit the responsibilities of such Master Servicer
hereunder.
(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 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 3.29, exercise reasonable efforts, consistent with the
Servicing Standards, to foreclose upon or otherwise comparably convert (which
may include an REO Acquisition) the ownership of property securing such Mortgage
Loans (other than the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the AmeriCold
Portfolio Mortgage Loan) or Companion Loans, as come into and continue in
default as to which no satisfactory arrangements can be made for collection of
delinquent payments, and which are not released from the Trust Fund pursuant to
any other provision hereof. The foregoing is subject to the provision that, in
any case in which a Mortgaged Property shall have suffered damage from an
Uninsured Cause, the 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 or
the Lower-Tier REMIC under the REMIC Provisions or cause the Upper-Tier
REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC at any time
that any Uncertificated Lower-Tier Interest or Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09
and Section 3.29, neither the Master Servicers nor the Special Servicer shall,
on behalf of the Trustee, obtain title to a Mortgaged Property in lieu of
foreclosure or otherwise, or take any other action with respect to any Mortgaged
Property, if, as a result of any such action, the Trustee, on behalf of the
Certificateholders and/or any related Companion Holder(s), would be considered
to hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law, unless (as evidenced by an Officer's Certificate to such effect
delivered to the Trustee) the Special Servicer has previously determined in
accordance with the Servicing Standards, based on an Environmental Assessment of
such Mortgaged Property performed by an Independent Person who regularly
conducts Environmental Assessments and performed within six months prior to any
such acquisition of title or other action, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions as
are necessary to bring the Mortgaged Property in compliance therewith is
reasonably likely to produce a greater recovery on a net present value
basis than not taking such actions, for such purposes taking into account
any insurance coverage provided pursuant to any environmental insurance
polices in effect and obtained on behalf of the Mortgagee with respect to
the related Mortgaged Property; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could be required, that
taking such actions with respect to such Mortgaged Property is reasonably
likely to produce a greater recovery on a net present value basis than not
taking such actions.
The cost of any such Environmental Assessment shall be paid by the
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 as a
Servicing Advance, unless it is a Nonrecoverable Servicing Advance (in which
case it shall be an expense of the Trust Fund); 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 AB
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 enforcing claims and shall monitor the
dates by which any claim or action must be taken (including delivering any
notices to the insurer and using reasonable efforts to perform any actions
required under such policy) under each environmental insurance policy in effect
and obtained on behalf of the mortgagee to receive the maximum proceeds
available under such policy for the benefit of the Certificateholders and the
Trustee (as holder of the Uncertificated Lower-Tier Interests).
(d) If (i) the environmental testing contemplated by subsection (c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan and any related Companion
Loan(s) and (ii) there has been no breach of any of the representations and
warranties set forth in or required to be made pursuant to Section 6 of each of
the Mortgage Loan Purchase Agreements for which the applicable Mortgage Loan
Seller could be required to repurchase such Defaulted Mortgage Loan pursuant to
Section 6 of the applicable Mortgage Loan Purchase Agreement, then the Special
Servicer shall take such action as it deems to be in the best economic interest
of the Trust Fund (other than proceeding to acquire title to the Mortgaged
Property) and is hereby authorized (with the consent of the Directing
Certificateholder) at such time as it deems appropriate to release such
Mortgaged Property from the lien of the related Mortgage, provided that, if such
Mortgage Loan has a then outstanding principal balance of greater than
$1,000,000, then prior to the release of the related Mortgaged Property from the
lien of the related Mortgage, (i) the Special Servicer shall have notified the
Rating Agencies, the Trustee, the Paying Agent, the 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 Paying Agent
shall have notified the Certificateholders in writing of the Special Servicer's
intention to so release such Mortgaged Property, (iii) the Holders of
Certificates entitled to a majority of the Voting Rights shall have consented to
such release within 30 days of the Paying Agent's distributing such notice
(failure to respond by the end of such 30-day period being deemed consent), and
(iv) the Special Servicer shall have received written confirmation from each
Rating Agency that such release will not cause the downgrade, withdrawal or
qualification of any of the then-current ratings of any Class of Certificates.
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 or
Special Servicer, as applicable, shall use commercially reasonable efforts to
collect such fee from the Mortgagor to the extent permitted under the related
Mortgage Loan documents.
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Trustee, the Paying Agent, the Directing
Certificateholder, each Rating Agency and the applicable Master Servicer monthly
regarding any actions taken by the Special Servicer with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan or defaulted Companion
Loan as to which the environmental testing contemplated in subsection (c) above
has revealed that either of the conditions set forth in clauses (i) and (ii) of
the first sentence thereof has not been satisfied, in each case until the
earlier to occur of satisfaction of both such conditions, repurchase of the
related Mortgage Loan by the applicable Mortgage Loan Seller or release of the
lien of the related Mortgage on such Mortgaged Property. The Paying Agent shall
forward, or cause to be forwarded all such reports to each Rating Agency and the
Certificateholders upon request.
(f) The Special Servicer shall notify the 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 and
the Paying Agent.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standards, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan and applicable Companion
Loan permit such an action.
(h) The Special Servicer shall maintain accurate records, prepared
by one of its Servicing Officers, of each Final Recovery Determination in
respect of a Defaulted Mortgage Loan, defaulted Companion Loan or REO Property
(other than with respect to the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the
AmeriCold Portfolio Mortgage Loan) and the basis thereof. Each Final Recovery
Determination shall be evidenced by an Officer's Certificate promptly delivered
to the Trustee, the Paying Agent, the Directing Certificateholder and the
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 000 Xxxxxxxxx
Xxxxxx Mortgage Loan and the AmeriCold Portfolio Mortgage Loan), 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 promptly notify the Trustee and request delivery of the related Mortgage
File. Any such notice and request shall be in the form of a Request for Release
signed by a Servicing Officer and shall include a statement to the effect that
all amounts received or to be received in connection with such payment which are
required to be deposited in the Certificate Account pursuant to Section 3.04(a)
or remitted to the 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. 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 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the
AmeriCold Portfolio Mortgage Loan)(and any related Companion Loan), the Master
Servicer or the Special Servicer shall deliver to the Trustee a Request for
Release signed by a Servicing Officer. Upon receipt of the foregoing, the
Trustee shall deliver or cause the related Custodian to deliver, the Mortgage
File or any document therein to the Master Servicer or the Special Servicer (or
a designee), as the case may be. Upon return of such Mortgage File or such
document to the Trustee or the related Custodian, or the delivery to the Trustee
of a certificate of a Servicing Officer of the Master Servicer or the Special
Servicer, as the case may be, stating that such Mortgage Loan was liquidated and
that all amounts received or to be received in connection with such liquidation
which are required to be deposited into the 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 of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents necessary to the foreclosure or trustee's sale in respect of
a Mortgaged Property or to any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note (including any note evidencing the related
Companion Loan) or Mortgage or to obtain a deficiency judgment, or to enforce
any other remedies or rights provided by the Mortgage Note or Mortgage or
otherwise available at law or in equity. The Special Servicer shall be
responsible for the preparation of all such documents and pleadings. When
submitted to the Trustee for signature, such documents or pleadings shall be
accompanied by a certificate of a Servicing Officer requesting that such
pleadings or documents be executed by the Trustee and certifying as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the lien
of the Mortgage, except for the termination of such a lien upon completion of
the foreclosure or trustee's sale.
(d) If, from time to time, pursuant to the terms of the 000
Xxxxxxxxx Xxxxxx Intercreditor Agreement and the 0000-XXX00 Xxxxxxx Agreement,
and as appropriate for enforcing the terms of the 000 Xxxxxxxxx Xxxxxx Mortgage
Loan, the 000 Xxxxxxxxx Xxxxxx Master Servicer requests delivery to it of the
original Mortgage Note for the 000 Xxxxxxxxx Xxxxxx Mortgage Loan, then the
Trustee shall, upon receipt of a Request for Release from the 000 Xxxxxxxxx
Avenue Master Servicer, release or cause the release of such original Mortgage
Note to the 000 Xxxxxxxxx Xxxxxx Master Servicer or its designee.
(e) If, from time to time, pursuant to the terms of the AmeriCold
Portfolio Intercreditor Agreement and the 2007-CIBC18 Pooling Agreement, and as
appropriate for enforcing the terms of the AmeriCold Portfolio Mortgage Loan,
the AmeriCold Portfolio Master Servicer or the AmeriCold Portfolio Primary
Servicer requests delivery to it of the original Mortgage Note for the AmeriCold
Portfolio Mortgage Loan, then the Trustee shall, upon receipt of a Request for
Release from the AmeriCold Portfolio Master Servicer or the AmeriCold Portfolio
Primary Servicer, as applicable, release or cause the release of such original
Mortgage Note to the AmeriCold Portfolio Master Servicer or the AmeriCold
Portfolio Primary Servicer, as applicable, 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 and REO
Loan (including Specially Serviced Mortgage Loans). As to each Mortgage Loan,
Companion Loan and REO Loan, the Servicing Fee shall accrue from time to time at
the Servicing Fee Rate and shall be computed on the basis of the Stated
Principal Balance of such Mortgage Loan, Companion Loan or REO Loan, as the case
may be, and in the same manner as interest is calculated on such Mortgage Loan,
Companion Loan or REO Loan, as the case may be, and, in connection with any
partial month interest payment, for the same period respecting which any related
interest payment due on such Mortgage Loan or Companion Loan or deemed to be due
on such REO Loan is computed. The Servicing Fee with respect to any Mortgage
Loan, Companion Loan or REO Loan shall cease to accrue if a Liquidation Event
occurs in respect thereof. 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) and Section
7.01(c), the right to receive the Servicing Fee may not be transferred in whole
or in part (except in connection with a transfer of all of a Master Servicer's
duties and obligations hereunder to a successor servicer in accordance with the
terms hereof).
Each Master Servicer shall be entitled to retain, and shall not be
required to deposit in the Certificate Account pursuant to Section 3.04(a),
additional servicing compensation (other than with respect to the 000 Xxxxxxxxx
Xxxxxx Mortgage Loan and the AmeriCold Portfolio Mortgage Loan) in the form of
(i) 100% of modification, waiver and consent fees pursuant to Section 3.08(e),
provided the consent of the Special Servicer is not required to take such
action, (ii) 100% of all defeasance fees and 50% of application fees received on
Non-Specially Serviced Mortgage Loans and (iii) 50% of all assumption,
extension, earnout, waiver and consent fees pursuant to Section 3.08(a) and
Section 3.08(b) on the Non-Specially Serviced Mortgage Loans, to the extent that
such fees are paid by the Mortgagor and for which the Special Servicer's consent
or approval is required on the Non-Specially Serviced Mortgage Loans (other than
with respect to the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the AmeriCold
Portfolio Mortgage Loan) and only to the extent that all amounts then due and
payable with respect to the related Mortgage Loan have been paid. Payments by a
Mortgagor for out-of-pocket expenses shall not be construed as application fees
for purposes of the foregoing. In addition, the applicable Master Servicer shall
be entitled to retain as additional servicing compensation (other than with
respect to the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the AmeriCold Portfolio
Mortgage Loan) any charges for processing Mortgagor requests, beneficiary
statements or demands, reasonable and customary consent fees, fees in connection
with defeasance, if any, and other customary charges, and amounts collected for
checks returned for insufficient funds, in each case only to the extent actually
paid by the related Mortgagor and shall not be required to deposit such amounts
in its Certificate Account or the Companion Distribution Account pursuant to
Section 3.04(a). 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 and including the prior Distribution Date to and including
the P&I Advance Date related to such Distribution Date), (iii) interest or other
income earned on deposits in the Servicing Account which are not required by
applicable law or the related Mortgage Loan to be paid to the Mortgagor and (iv)
the difference, if positive, between Prepayment Interest Excess and Prepayment
Shortfalls collected on the Mortgage Loans during the related Due Period to the
extent not required to be paid as Compensating Interest Payments. 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.
(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 000 Xxxxxxxxx
Xxxxxx Mortgage Loan, the AmeriCold Portfolio Mortgage Loan and any successor
REO Loan). As to each Specially Serviced Mortgage Loan and REO Loan, the Special
Servicing Fee shall accrue from time to time at the Special Servicing Fee Rate
and shall be computed on the basis of the Stated Principal Balance of such
Specially Serviced Mortgage Loan or REO Loan, as the case may be, and in the
same manner as interest is calculated on the Specially Serviced Mortgage Loans
or REO Loans, as the case may be, and, in connection with any partial month
interest payment, for the same period respecting which any related interest
payment due on such Specially Serviced Mortgage Loan or deemed to be due on such
REO Loan is computed. The Special Servicing Fee with respect to any Specially
Serviced Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event
occurs in respect thereof. The Special Servicing Fee shall be payable monthly,
on a loan-by-loan basis, in accordance with the provisions of Section 3.05(a).
The right to receive the Special Servicing Fee may not be transferred in whole
or in part except in connection with the transfer of all of the Special
Servicer's responsibilities and obligations under this Agreement. The Special
Servicer shall not specially service or be entitled to any Special Servicing
Fees with respect to the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the AmeriCold
Portfolio Mortgage Loan.
(c) Additional servicing compensation in the form of (i) 100% of all
fees with respect to application, assumption, extension, modification, waiver,
consent, earnout and all defeasance fees, in each case, received on any
Specially Serviced Mortgage Loans (other than the 000 Xxxxxxxxx Xxxxxx Mortgage
Loan, the AmeriCold Portfolio Mortgage Loan and any successor REO Loan) to the
extent such fees are paid by the Mortgagor, (ii) 50% of all application fees
received on Non-Specially Serviced Mortgage Loans and (iii) 50% of all
assumption, extension, material modification, waiver, consent and earnout fees
pursuant to Section 3.08(a) and 3.08(b) or 3.20 received with respect to all
Non-Specially Serviced Mortgage Loans and for which the Special Servicer's
consent or approval is required, shall be promptly paid to the Special Servicer
by the 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). Payments by a Mortgagor for
out-of-pocket expenses shall not be construed as application fees for purposes
of the foregoing. 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 specially service or be
entitled to any Special Servicing Fees with respect to the 000 Xxxxxxxxx Xxxxxx
Mortgage Loan and the AmeriCold Portfolio Mortgage Loan. If the Special Servicer
is terminated (other than for cause) or resigns, it shall retain the right to
receive any and all Workout Fees payable in respect of Mortgage Loans or
Companion Loans that became Corrected Mortgage Loans prior to the time of that
termination or resignation except the Workout Fees will no longer be payable if
the Mortgage Loan subsequently becomes a Specially Serviced Mortgage Loan. If
the Special Servicer resigns or is terminated (other than for cause), it will
receive any Workout Fees payable on Specially Serviced Mortgage Loans for which
the resigning or terminated Special Servicer had cured the event of default
through a modification, restructuring or workout negotiated by the Special
Servicer and evidenced by a signed writing with respect to which one (1)
scheduled payment has been made, but which had not as of the time the Special
Servicer resigned or was terminated become a Corrected Mortgage Loan solely
because the Mortgagor had not had sufficient time to make three consecutive
timely Monthly Payments and which subsequently becomes a Corrected Mortgage Loan
as a result of the Mortgagor making such three consecutive timely Monthly
Payments. The successor Special Servicer will not be entitled to any portion of
such Workout Fees. The Special Servicer will not be entitled to receive any
Workout Fees after termination for cause. A Liquidation Fee will be payable with
respect to each Specially Serviced Mortgage Loan (other than the 000 Xxxxxxxxx
Xxxxxx Mortgage Loan and the AmeriCold Portfolio Mortgage Loan) or REO Property
as to which the Special Servicer receives any Liquidation Proceeds or Insurance
and Condemnation Proceeds subject to the exceptions set forth in the definition
of Liquidation Fee (such Liquidation Fee to be paid out of such Liquidation
Proceeds, Insurance and Condemnation Proceeds). If, however, Liquidation
Proceeds or Insurance and Condemnation Proceeds are received with respect to any
Corrected Mortgage Loan and the Special Servicer is properly entitled to a
Workout Fee, such Workout Fee will be payable based on and out of the portion of
such Liquidation Proceeds and Insurance and Condemnation Proceeds that
constitute principal and/or interest on such Mortgage Loan. Notwithstanding
anything herein to the contrary, the Special Servicer shall only be entitled to
receive a Liquidation Fee or a Workout Fee, but not both, with respect to
proceeds on any Mortgage Loan. Notwithstanding the foregoing, with respect to
any Companion Loan, the Liquidation Fee, Workout Fee and Special Servicing Fees,
if any, will be computed as provided in the related Intercreditor Agreement or
to the extent such Intercreditor Agreement is silent, as provided herein as
though such Companion Loan were a Mortgage Loan. Subject to Section 3.11(d), the
Special Servicer will also be entitled to additional fees in the form of Penalty
Charges to the extent provided in subsection (d). The Special Servicer shall be
required to pay out of its own funds all expenses incurred by it in connection
with its servicing activities hereunder (including, without limitation, payment
of any amounts, other than management fees in respect of REO Properties, due and
owing to any of its Sub-Servicers and the premiums for any blanket Insurance
Policy obtained by it insuring against hazard losses pursuant to Section 3.07),
if and to the extent such expenses are not expressly payable directly out of the
Certificate Account or the REO Account, and the Special Servicer shall not be
entitled to reimbursement therefor except as expressly provided in this
Agreement.
(d) In determining the compensation of the Master Servicers or
Special Servicer, as applicable, with respect to Penalty Charges, on any
Distribution Date, the aggregate Penalty Charges collected on any Mortgage Loan
(other than the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the AmeriCold Portfolio
Mortgage Loan) since the prior Distribution Date shall be applied (in such
order) to reimburse (i) the applicable Master Servicer or the Trustee for
interest on Advances on such Mortgage Loan (and, in connection with the 000
Xxxxxxxxx Xxxxxx Mortgage Loan, the 000 Xxxxxxxxx Xxxxxx Master Servicer, the
000 Xxxxxxxxx Xxxxxx Special Servicer, the 000 Xxxxxxxxx Xxxxxx Co-Trustee or
the 000 Xxxxxxxxx Xxxxxx Trustee for interest on the Servicing Advances made by
any such party with respect to the 000 Xxxxxxxxx Xxxxxx Whole Loan pursuant to
the 0000-XXX00 Xxxxxxx Agreement, to the extent so provided in the 000 Xxxxxxxxx
Xxxxxx Intercreditor Agreement and, in connection with the AmeriCold Portfolio
Mortgage Loan, the AmeriCold Portfolio Master Servicer, the AmeriCold Portfolio
Special Servicer, the AmeriCold Portfolio Primary Servicer or the AmeriCold
Portfolio Trustee for interest on the Servicing Advances made by any such party
with respect to the AmeriCold Portfolio Whole Loan pursuant to the 2007-CIBC18
Pooling Agreement, to the extent so provided in the AmeriCold Portfolio
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 Trustee pursuant to Section 3.05(a)(vi) hereof (and, in connection with the
000 Xxxxxxxxx Xxxxxx Mortgage Loan, the 000 Xxxxxxxxx Xxxxxx Trust for all
interest on Servicing Advances reimbursed by the 000 Xxxxxxxxx Xxxxxx Trust to
any party under the 0000-XXX00 Xxxxxxx Agreement, which resulted in an
additional trust fund expense for the 000 Xxxxxxxxx Xxxxxx Trust, to the extent
so provided in the 000 Xxxxxxxxx Xxxxxx Intercreditor Agreement and, in
connection with the AmeriCold Portfolio Mortgage Loan, the AmeriCold Portfolio
Trust for all interest on Servicing Advances reimbursed by the AmeriCold
Portfolio Trust to any party under the 2007-CIBC18 Pooling Agreement, which
resulted in an additional trust fund expense for the AmeriCold Portfolio Trust,
to the extent so provided in the AmeriCold Portfolio Intercreditor Agreement)
with respect to such Mortgage Loan and (iii) the Trust Fund for costs of all
additional Trust Fund expenses (other than Special Servicing Fees, Workout Fees
and Liquidation Fees), including without limitation, inspections by the Special
Servicer and all unpaid Advances incurred since the Closing Date with respect to
such Mortgage Loan; Penalty Charges (other than with respect to the 000
Xxxxxxxxx Xxxxxx Mortgage Loan, which shall be payable as additional servicing
compensation under the 0000-XXX00 Xxxxxxx Agreement and the AmeriCold Portfolio
Mortgage Loan, which shall be payable as additional servicing compensation under
the 2007-CIBC18 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 collected on such Mortgage Loan during the period
such Mortgage Loan was a Specially Serviced Mortgage Loan. Notwithstanding the
foregoing, Penalty Charges with respect to any Companion Loan will be allocated
pursuant to the applicable Intercreditor Agreement after payment of all related
Advances and interest thereon.
(e) Nothwithstanding anything to contrary in the Holiday Inn
Express-Temecula Intercreditor Agreement and the Veteran's Parkway Intercreditor
Agreement, the applicable Master Servicer and/or the Special Servicer, as the
case may be, shall be entitled, as set forth in this Section 3.11, to the
assumption fees and assumption application fees as additional servicing
compensation with respect to the Holiday Inn Express-Temecula Mortgage Loan and
the Veteran's Parkway Mortgage 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 000 Xxxxxxxxx Xxxxxx Mortgaged Property and the AmeriCold
Portfolio Mortgaged Property) securing a Mortgage Note that it is responsible
for servicing hereunder with a stated Principal Balance of (i) $2,000,000 or
more at least once every 12 months and (ii) less than $2,000,000 at least once
every 24 months, in each case commencing in the calendar year 2008 (and each
Mortgaged Property shall be inspected on or prior to November 2008); 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, the
Master Servicer will not be required to perform or cause to be performed, such
physical inspection; provided, further, that if any scheduled payment becomes
more than 60 days delinquent on the related Mortgage Loan, the Special Servicer
shall inspect or cause to be inspected the related Mortgaged Property as soon as
practicable after such Mortgage Loan becomes a Specially Serviced Mortgage Loan
and annually thereafter for so long as such Mortgage Loan remains a Specially
Serviced Mortgage Loan. The cost of such inspection by the Special Servicer
shall be an expense of the Trust Fund, and to the extent not paid by the related
Mortgagor reimbursed first from Penalty Charges 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 and any damage to the Mortgaged
Property to the extent evident from the inspection and specifying the existence
of (i) any vacancy in the Mortgaged Property that the preparer of such report
deems material, (ii) any sale, transfer or abandonment of the Mortgaged Property
of which the preparer of such report has knowledge or that is evident from the
inspection, (iii) any adverse change in the condition of the Mortgaged Property
of which the preparer of such report has knowledge or that is evident from the
inspection, and that the preparer of such report deems material, (iv) any
visible material waste committed on the Mortgaged Property of which the preparer
of such report has knowledge or that is evident from the inspection and (v)
photographs of each inspected Mortgaged Property. The Special Servicer and the
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, the
Paying Agent and the Rating Agencies within five (5) Business Days after request
(or if such request is received before such report is completed, within five (5)
Business Days after completion of such report). The Paying Agent shall deliver a
copy of each such report to the Controlling Class Certificateholder upon request
and to each Holder of a Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class P, Class Q 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 and annual operating statements,
budgets and rent rolls of the related Mortgaged Property, and the quarterly and
annual financial statements of such Mortgagor, whether or not delivery of such
items is required pursuant to the terms of the related Mortgage. Each Master
Servicer and the Special Servicer shall not be required to request such
statements more than once if the related Mortgagor is not required to deliver
such statements pursuant to the terms of the Mortgage Loan documents. In
addition, the Special Servicer shall cause quarterly and annual operating
statements, budgets and rent rolls to be regularly prepared in respect of each
REO Property and shall collect all such items promptly following their
preparation. The Special Servicer shall deliver all such items to the 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 Paying Agent, the Directing
Certificateholder and, upon request, to the Depositor and each other, in each
case within 60 days of its receipt thereof, but in no event, in the case of
annual statements, later than June 30 of each year commencing June 30, 2008. The
Paying Agent shall, upon request, deliver copies (in hard copy, electronic
format or make available on its internet website) of the foregoing items to the
Underwriters, the Trustee, the Rating Agencies, the Controlling Class
Certificateholders, the Mortgage Loan Sellers or, to the extent the Certificate
Registrar has confirmed the Ownership Interest in Certificates held thereby, any
Certificate Owner, a copy (or image in suitable electronic media) of each such
report prepared by the 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. 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 000 Xxxxxxxxx Xxxxxx Mortgaged Property and
the AmeriCold Portfolio Mortgaged Property) and REO Property, and such Master
Servicer shall forward copies (in electronic format or make available on its
internet website) thereof and the related operating statements or rent rolls (in
each case, promptly following the initial preparation and each material revision
thereof) to the Paying Agent (in electronic format only), the Directing
Certificateholder (and with respect to any Companion Loan, the related Companion
Holder) and the Special Servicer. The Paying Agent shall, upon request and to
the extent such items have been delivered to the Paying Agent by the 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 the CMSA Special Servicer Loan
File with respect to the Specially Serviced Mortgage Loans and any REO
Properties (other than the 000 Xxxxxxxxx Xxxxxx Mortgaged Property and the
AmeriCold Portfolio 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 Historical Loan Modification and
Corrected Mortgage Loan Report, (iii) a CMSA REO Status Report, (iv) a CMSA
Comparative Financial Status Report and (v) a CMSA NOI Adjustment Worksheet and
a CMSA Operating Statement Analysis Report, in each case with the supporting
financial statements submitted by the Mortgagor.
(e) Not later than 1:00 p.m. (New York City time) on the P&I Advance
Date beginning July 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 Paying Agent 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
the CMSA REO Status Report, (ii) CMSA Loan Setup File (with respect to the first
Distribution Date), (iii) the most recent CMSA Property File, and CMSA
Comparative Financial Status Report (in each case incorporating the data
required to be included in the CMSA Special Servicer Loan File pursuant to
Section 3.12(d) by the Special Servicer and Master Servicer), (iv) a CMSA
Servicer Watch List with information that is current as of such Determination
Date, (v) CMSA Financial File, (vi) CMSA Loan Level Reserve LOC Report, (vii)
the Realized Loss Report, (viii) the CMSA Advance Recovery Report and (ix) with
respect to Mortgage Loans that have Companion Loans, the CMSA Total Loan Report.
Not later than 2:00 p.m. (New York City time) two (2) Business Days prior to the
Distribution Date, the applicable Master Servicer shall deliver or cause to be
delivered to the Paying Agent via electronic format the CMSA Loan Periodic
Update File. In no event shall any report described in this subsection be
required to reflect information that has not been collected by or delivered to
the applicable Master Servicer, or any payments or collections not received by
the applicable Master Servicer, as of the Business Day prior to the Business Day
on which the report is due.
(f) The Special Servicer shall deliver to the Master 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 Paying Agent 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 Paying
Agent 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 Paying
Agent pursuant to Section 3.12(e), to the extent that such information or
reports are, in turn, based on information or reports to be provided by the
Special Servicer pursuant to Section 3.12(c) or Section 3.12(d) and to the
extent that such reports are to be prepared and delivered by the Special
Servicer pursuant to Section 3.12(c) or Section 3.12(d), such Master Servicer
shall have no obligation to provide such information or reports to the Paying
Agent until it has received the requisite information or reports from the
Special Servicer, and 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 Paying
Agent and the Directing Certificateholder or any Companion Holder, 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 anything to the contrary in the foregoing, each
Master Servicer and the Special Servicer shall deliver any required statements,
reports or other information to the Trustee in an electronic format mutually
agreeable to the Trustee and 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, however, copies in electronic format shall
follow upon the correction of such system problems.
Section 3.13 [Reserved].
Section 3.14 [Reserved].
Section 3.15 Access to Certain Information. Each of the Master
Servicer and the Special Servicers shall provide or cause to be provided to any
Certificateholder or Certificate Owner that is, or is affiliated with, a
federally insured financial institution, the Trustee, the Paying Agent, the
Depositor, each Mortgage Loan Seller, each Rating Agency, the Directing
Certificateholder and any Companion Holder, and to the 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 F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class P, Class Q or Class NR Certificate,
and to each Companion Holder (solely with respect to the related AB Mortgage
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 and the Trustee
and the Paying Agent on its own behalf or on behalf of the Certificateholders)
of a sum sufficient to cover the reasonable out-of-pocket costs incurred by it
in making such copies. Such access shall (except as described in the preceding
sentence) be afforded without charge but only upon reasonable prior written
request and during normal business hours at the offices of 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, the
Paying Agent or the Directing Certificateholder, the Master Servicer and the
Special Servicer may each (i) affix a reasonable disclaimer to any information
provided by it for which it is not the original source (without suggesting
liability on the part of any other party hereto); (ii) affix to any information
provided by it a reasonable statement regarding securities law restrictions on
such information and/or condition access to information on the execution of a
reasonable confidentiality agreement; (iii) withhold access to confidential
information or any intellectual property; and (iv) withhold access to items of
information contained in the Servicing File for any Mortgage Loan if the
disclosure of such items is prohibited by applicable law or the provisions of
any related Mortgage Loan documents or would constitute a waiver of the
attorney-client privilege. Notwithstanding any provision of this Agreement to
the contrary, the failure of 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
000 Xxxxxxxxx Xxxxxx Mortgage Loan and the AmeriCold Portfolio Mortgage Loan is
excluded for all purposes of this Section 3.16. The Special Servicer, on behalf
of the Trust Fund, shall sell any REO Property prior to the close of the third
calendar year following the year in which the Trust Fund acquires ownership of
such REO Property, within the meaning of Treasury Regulations Section
1.856-6(b)(1), for purposes of Section 860G(a)(8) of the Code, unless the
Special Servicer either (i) is granted an extension of time (an "REO Extension")
by the Internal Revenue Service to sell such REO Property or (ii) obtains for
the Trustee, the Paying Agent and the applicable Master Servicer an Opinion of
Counsel, addressed to the Trustee, the Paying Agent 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 or the Lower-Tier REMIC or cause the Upper-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interest or Certificate is outstanding. If the Special
Servicer is granted the REO Extension contemplated by clause (i) of the
immediately preceding sentence or obtains the Opinion of Counsel contemplated by
clause (ii) of the immediately preceding sentence, the Special Servicer shall
sell such REO Property within such longer period as is permitted by such REO
Extension or such Opinion of Counsel, as the case may be. Any expense incurred
by the Special Servicer in connection with its being granted the REO Extension
contemplated by clause (i) of the second preceding sentence or its obtaining the
Opinion of Counsel contemplated by clause (ii) of the second preceding sentence,
shall be an expense of the Trust Fund payable out of the Certificate Account
pursuant to Section 3.05(a).
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more REO Accounts, held on
behalf of the Trustee in trust for the benefit of the Certificateholders and, if
applicable, on behalf of the Companion Holder(s), as their interest shall
appear, and the Trustee (as holder of the Uncertificated Lower-Tier Interests),
for the retention of revenues and other proceeds derived from each REO Property.
The REO Account shall be an Eligible Account. The Special Servicer shall
deposit, or cause to be deposited, in the REO Account, within 1 Business Day
after receipt, all REO Revenues, Insurance and Condemnation Proceeds and
Liquidation Proceeds received in respect of an REO Property. Funds in the REO
Account may be invested in Permitted Investments in accordance with Section
3.06. The Special Servicer shall give notice to the Trustee and the Master
Servicer of the location of the REO Account when first established and of the
new location of the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, insuring, leasing, maintenance
and disposition of any REO Property, but only to the extent of amounts on
deposit in the REO Account relating to such REO Property. On or prior to each
Determination Date, 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, the Special Servicer shall provide the applicable Master
Servicer with a written accounting of amounts remitted to 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 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
Uncertificated Lower-Tier Interests) solely for the purpose of its timely
disposition and sale in a manner that does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or result in the receipt by the Trust Fund 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 Loan Pair, the related Companion
Holder(s)) and the Trustee (as holder of the Uncertificated Lower-Tier
Interests) all as a collective whole (as determined by the Special Servicer in
its reasonable judgment in accordance with the Servicing Standards). REO
Property with respect to the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the
AmeriCold Portfolio Mortgage Loan is excluded for all purposes of this Section
3.17. Subject to this Section 3.17, the Special Servicer may allow the Trust
Fund 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 Depositor, the Paying Agent
and the Directing Certificateholder) such advances would, if made, constitute
Nonrecoverable Servicing Advances.
(b) Without limiting the generality of the foregoing, the Special Servicer
shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms will
give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Mortgage Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any REO Property on any date
more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer as a Servicing
Advance) to the effect that such action will not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code at any time that it is held for the benefit of the Trust Fund, in which
case the Special Servicer may take such actions as are specified in such Opinion
of Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the acquisition date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund) shall be reasonable and customary in light of
the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection (a)
hereof, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated to manage and supervise
such Independent Contractor in accordance with the Servicing Standards.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(d) When and as necessary, the Special Servicer shall send to the
Trustee, the Paying Agent and the 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, the Paying Agent and the Certificateholder
that owns the largest aggregate Certificate Balance of the Controlling Class
(the "Controlling Class Option 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 (to the extent such parties have not already received), the
most recent Appraisal of the related Mortgaged Property then in the Special
Servicer's possession, together with such other third-party reports and other
information then in the Special Servicer's possession that the Special Servicer
reasonably believes to be relevant to the fair value determination with respect
to such Mortgage Loan (such materials are, collectively, the "Determination
Information"). If the Special Servicer will not be determining whether the
Option Price represents fair value of the Defaulted Mortgage Loan, pursuant to
the penultimate paragraph of Section 3.18(a)(iv), the Special Servicer shall
also deliver the Determination Information to the Trustee.
In determining the fair value of any Defaulted Mortgage Loan, the
Special Servicer shall take into account, among other factors, the period
and amount of the delinquency on such Mortgage Loan, the occupancy level
and physical condition of the related Mortgaged Property, the state of the
local economy in the area where the Mortgaged Property is located, and the
time and expense associated with a purchaser's foreclosing on the related
Mortgaged Property. In addition, the Special Servicer shall refer to the
Determination Information and all other relevant information obtained by
it or otherwise contained in the Mortgage File; provided that the Special
Servicer shall take account of any change in circumstances regarding the
related Mortgaged Property known to the Special Servicer that has occurred
subsequent to, and that would, in the Special Servicer's reasonable
judgment, materially affect the value of the related Mortgaged Property
reflected in, the most recent related Appraisal. Furthermore, the Special
Servicer shall consider all available objective third-party information
obtained from generally available sources, as well as information obtained
from vendors providing real estate services to the Special Servicer,
concerning the market for distressed real estate loans and the real estate
market for the subject property type in the area where the related
Mortgaged Property is located. The Special Servicer may conclusively rely
on the opinion and reports of Independent third parties in making such
determination.
(ii) Subject to the terms and conditions of clauses (d), (e), (f)
and (g) of this Section 3.18, at the time a Mortgage Loan becomes a
Defaulted Mortgage Loan, the Special Servicer and Controlling Class Option
Holder (each, together with their assignees, an "Option Holder") will have
an assignable option (the "Purchase Option") to purchase such Defaulted
Mortgage Loan from the Trust Fund at a price (the "Option Price") equal to
(A) if the Special Servicer has not yet determined the fair value of such
Defaulted Mortgage Loan, the sum of (1) the Stated Principal Balance
thereof, together with all accrued and unpaid interest thereon at the
Mortgage Rate, (2) any related Yield Maintenance Charge or prepayment
premium then payable (except if the Purchase Option is exercised by the
Controlling Class Option Holder), (3) all related Advances for which the
Trust Fund or the 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, the
Paying Agent 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 Paying Agent and the Trustee written notice thereof
(the "Purchase Option Notice"), in the form of Exhibit J, which notice
shall identify the Person that, on its own or through an Affiliate, will
acquire the related Mortgage Loan upon closing and shall specify a cash
exercise price at least equal to the Option Price. The Purchase Option
Notice shall be delivered in the manner specified in Section 12.05.
Immediately upon receipt of such Purchase Option Notice, the Special
Servicer shall notify the remaining Option Holders that a Purchase Option
has been exercised. Within ten (10) days thereafter, each remaining Option
Holder may submit to the Special Servicer a Purchase Option Notice for the
related Defaulted Mortgage Loan. Upon the expiration of such ten (10) day
period, or such sooner time as all remaining Option Holders have submitted
Purchase Option Notices, the Special Servicer shall notify the Option
Holder whose Purchase Option Notice included the highest exercise price
that the exercise of its Purchase Option is effective. The Special
Servicer shall also notify the Trustee of such effective exercise. In the
event that more than one Option Holder exercises its Purchase Option at
the same price, the Purchase Option Notice first received by the Special
Servicer shall be effective. The exercise of any Purchase Option pursuant
to this clause (iii) shall be irrevocable; provided that the assignor of
the Purchase Option shall have no liability to the Trust or any other
party hereto for the failure of its third party assignee to close the sale
of the Defaulted Mortgage Loan after its exercise of the option, and upon
such failure, the Purchase Option shall revert to the Option Holder as
provided herein as if the Purchase Option had not been exercised, and the
Special Servicer shall pursue against such assignee whatever remedies it
may have against the assignee.
(iv) If the Special Servicer or any Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, the 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
$1,000 fee plus reasonable out-of-pocket costs and expenses for each
determination made in accordance with this clause (iv), provided, however,
with respect to any Mortgage Loan, such $1,000 fee shall be collectible
once. The reasonable cost of all third party consultants and related
reports (in the event that such inspection report is pursuant to this
Section 3.18 and not an annual inspection pursuant to Section 3.12),
including but not limited to appraisals, inspection reports and broker
opinions of value, reasonably incurred by the Special Servicer or the
applicable Master Servicer pursuant to this Section 3.18(a)(iv) shall
constitute, and be reimbursable as, Servicing Advances; provided that the
Special Servicer or the 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 applicable Master Servicer, at
the direction of the Trustee, may pay such third party a fee of up to
$1,000 out of the Certificate Account. The reasonable costs of such
Independent third party appraisals, all inspection reports and broker
opinions of value, reasonably incurred by the Trustee or any such third
party pursuant to this paragraph shall be advanced by the 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 applicable Master Servicer or any designated third
party, as the case may be, determines that the Option Price is less than
the fair value of the Defaulted Mortgage Loan, such party shall provide
its determination, together with all information and reports it relied
upon in making such determination, to the Special Servicer, who may then
adjust its fair value determination and, consequently, the Option Price,
pursuant to Section 3.18(a)(i). The Special Servicer shall promptly
provide written notice of any adjustment of the Option Price to the Option
Holder whose Purchase Option has been declared effective pursuant to
clause (iii) above. Upon receipt of such notice, such Option Holder shall
have three (3) Business Days to (i) accept the Option Price as adjusted
and proceed in accordance with clause (v) below, or (ii) reject the Option
Price as adjusted, in which case such Option Holder shall not be obligated
to close the purchase of the Defaulted Mortgage Loan. Upon notice from
such Option Holder, or the Special Servicer, that such Option Holder
rejects the Option Price as adjusted, the Master Servicer and the Trustee
shall provide the notices described in the second paragraph of clause (v)
below and thereafter any Option Holder may exercise its purchase option in
accordance with Section 3.18(a), at the Option Price as adjusted.
(v) The Option Holder whose Purchase Option is declared effective
pursuant to clause (iii) above shall be required to pay the purchase price
specified in its Purchase Option Notice to the applicable Master Servicer
within ten (10) Business Days of its receipt of the Special Servicer's (or
the applicable Master Servicer's, if the Option Holder is the Special
Servicer) notice confirming that the exercise of its Purchase Option is
effective. Upon receipt of an Officer's Certificate from the Special
Servicer or the applicable Master Servicer, as the case may be, 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 Loan Pair, 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 Loan Pair, 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, the Paying Agent, each Companion Holder and the
Directing Certificateholder not less than five (5) Business Days' prior written
notice of the Purchase Price and its intention to (i) purchase any REO Property
at the Purchase Price therefor or (ii) sell any REO Property, in which case the
Special Servicer shall accept the highest offer received from any Person for any
REO Property in an amount at least equal to the Purchase Price therefor. To the
extent permitted by applicable law, and subject to the Servicing Standards, the
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
Depositor, the applicable Master Servicer, the Special Servicer, the
Paying Agent or the Trust Fund (except that any contract of sale and
assignment and conveyance documents may contain customary warranties of
title, so long as the only recourse for breach thereof is to the Trust
Fund) and, if consummated in accordance with the terms of this Agreement,
none of the applicable Master Servicer, the Special Servicer, the
Depositor, the Paying Agent nor the Trustee shall have any liability to
the Trust Fund or any Certificateholder or Companion Holder with respect
to the purchase price therefor accepted by the Special Servicer or the
Trustee.
(c) Any sale of a Defaulted Mortgage Loan or any REO Property shall
be for cash only (unless changes in the REMIC Provisions or authoritative
interpretations thereof made or issued subsequent to the Startup Day allow a
sale for other consideration).
(d) Notwithstanding anything in this Section 3.18 to the contrary,
pursuant to the terms of the related Intercreditor Agreement, the Companion
Holder will have the right to purchase the related AB Mortgage Loan, as
applicable, or related REO Property. With respect to each AB Mortgage Loan, such
right of the Companion Holder shall be given priority over any provision
described in this Section 3.18 subject, to the extent applicable, to any rights
of a mezzanine lender as set forth in Section 3.18(e). If the AB 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 Paying Agent, the Master Servicers or the
Trust Fund shall acquire any 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
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.
Section 3.19 Additional Obligations of Master Servicer and Special
Servicer. (a) The applicable Master Servicer shall deliver all Compensating
Interest Payments to the Paying Agent for deposit in the Distribution Account on
each P&I Advance Date, without any right of reimbursement therefor.
(b) The applicable Master Servicer shall provide to each Companion
Holder any reports or notices required to be delivered to such Companion Holder
pursuant to the related Intercreditor Agreement.
(c) Upon the determination that a previously made Advance is a
Nonrecoverable Advance, to the extent that the reimbursement thereof would
exceed the full amount of the principal portion of general collections on the
Mortgage Loans deposited in the Certificate Account and available for
distribution on the next Distribution Date, the Master Servicer or the Trustee,
each at its own option and in its sole discretion, as applicable, instead of
obtaining reimbursement for the remaining amount of such Nonrecoverable Advance
pursuant to Section 3.05(a)(v) immediately, as an accommodation may elect to
refrain from obtaining such reimbursement for such portion of the Nonrecoverable
Advance during the one month collection period ending on the then current
Determination Date, for successive one-month periods for a total period not to
exceed 12 months. If any Master Servicer or the Trustee makes such an election
at its sole option and in its sole discretion to defer reimbursement with
respect to all or a portion of a Nonrecoverable Advance (together with interest
thereon), then such Nonrecoverable Advance (together with interest thereon) or
portion thereof shall continue to be fully reimbursable in the subsequent
collection period (subject, again, to the same sole option to defer; it is
acknowledged that, in such a subsequent period, such Nonrecoverable Advance
shall again be payable first from principal collections as described above prior
to payment from other collections). In connection with a potential election by
any Master Servicer or the Trustee to refrain from the reimbursement of a
particular Nonrecoverable Advance or portion thereof during the one month
collection period ending on the related Determination Date for any Distribution
Date, such Master Servicer or the Trustee shall further be authorized to wait
for principal collections on the Mortgage Loans to be received before making its
determination of whether to refrain from the reimbursement of a particular
Nonrecoverable Advance or portion thereof) until the end of such collection
period; provided, however, if, at any time the applicable Master Servicer or the
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 Trustee,
as applicable, shall use its reasonable efforts to give Xxxxx'x and S&P 15 days'
notice of such determination, unless extraordinary circumstances make such
notice impractical. Nothing herein shall give any Master Servicer or the Trustee
the right to defer reimbursement of a Nonrecoverable Advance to the extent of
any principal collections then available in the Certificate 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 Trustee (solely in its capacity as
Trustee), constitute a violation of any fiduciary duty to Certificateholders or
any contractual obligation hereunder. If any Master Servicer or the Trustee, as
applicable, determines, in its sole discretion, that its ability to fully
recover the Nonrecoverable Advances has been compromised, then such Master
Servicer or the Trustee, as applicable, shall be entitled to immediate
reimbursement of Nonrecoverable Advances with interest thereon at the
Reimbursement Rate from all amounts in its Certificate Account for such
Distribution Date (deemed first from principal and then interest). Any such
election by any such party to refrain from reimbursing itself or obtaining
reimbursement for any Nonrecoverable Advance or portion thereof with respect to
any one or more collection periods shall not limit the accrual of interest at
the Reimbursement Rate on such Nonrecoverable Advance for the period prior to
the actual reimbursement of such Nonrecoverable Advance. The applicable Master
Servicer's or the Trustee's, as the case may be, agreement to defer
reimbursement of such Nonrecoverable Advances as set forth above is an
accommodation to the Certificateholders and shall not be construed as an
obligation on the part of such Master Servicer or the Trustee, as applicable, or
a right of the Certificateholders. Nothing herein shall be deemed to create in
the Certificateholders a right to prior payment of distributions over the
applicable Master Servicer's or the Trustee's, as applicable, right to
reimbursement for Advances (deferred or otherwise) and accrued interest thereon.
In all events, the decision to defer reimbursement or to seek immediate
reimbursement of Nonrecoverable Advances shall be deemed to be in accordance
with the Servicing Standards and none of the Master Servicers, the Trustee or
the other parties to this Agreement shall have any liability to one another or
to any of the Certificateholders or any of the Companion Holders for any such
election that such party makes as contemplated by this section or for any
losses, damages or other adverse economic or other effects that may arise from
such an election.
Section 3.20 Modifications, Waivers, Amendments and Consents. (a)
Except as set forth in Section 3.08(a), Section 3.08(b), Section 3.08(f), this
Section 3.20(a), Section 3.20(d), Section 3.20(i), Section 3.20(j) and Section
6.07, but subject to any other conditions set forth thereunder, and, with
respect to an AB Mortgage Loan or, if applicable, a mezzanine 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 the terms of a Mortgage Loan and/or
Companion Loan without the prior written consent of the Special Servicer (and
such written consent request by the applicable Master Servicer shall be
accompanied by the applicable Master Servicer's written analysis and
recommendation); provided that, the applicable Master Servicer shall forward to
the Special Servicer requests along with its written analysis and recommendation
to extend the maturity date of a Mortgage Loan and/or Companion Loan that is not
a Specially Serviced Mortgage Loan, and the Special Servicer may approve such
request, and provided further, that except as provided in the following
sentence, no extension entered into pursuant to this Section 3.20(a) shall
extend the Maturity Date beyond the earlier of (i) two years prior to the Rated
Final Distribution Date and (ii) in the case of a Mortgage Loan secured by a
leasehold estate and not also the related fee interest, the date twenty years
or, to the extent consistent with the Servicing Standards giving due
consideration to the remaining term of the ground lease, ten years, prior to the
expiration of such leasehold estate. If such extension would extend the Maturity
Date of a Mortgage Loan and/or Companion Loan for more than twelve months from
and after the original Maturity Date of such Mortgage Loan and/or Companion Loan
and such Mortgage Loan and/or Companion Loan is not in default or default with
respect thereto is not reasonably foreseeable, the 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 or permitted to be paid by the Mortgagor, to be paid as a Trust Fund
expense in accordance with Section 3.11(d) and the Special Servicer shall not
consent to such extension without the consent of the Directing
Certificateholder) that such extension would not constitute a "significant
modification" of the Mortgage Loan and/or Companion Loan within the meaning of
Treasury Regulations Section 1.860G-2(b). Notwithstanding the foregoing, subject
to the rights of the related Companion Holder to advise the applicable Master
Servicer with respect to, or consent to, such modification, waiver or amendment
pursuant to the terms of the related Intercreditor Agreement, the applicable
Master Servicer, without the consent of the Special Servicer, may modify or
amend the terms of any Mortgage Loan and/or Companion Loan in order to (i) cure
any ambiguity or mistake therein or (ii) correct or supplement any provisions
therein which may be inconsistent with any other provisions therein or correct
any error, provided that, if the Mortgage Loan and/or Companion Loan is not in
default or default with respect thereto is not reasonably foreseeable, such
modification or amendment would not be a "significant modification" of the
Mortgage Loan and/or Companion Loan within the meaning of Treasury Regulations
Section 1.860G-2(b).
Subject to Section 6.07 herein, applicable law and the Mortgage Loan
or Companion Loan documents, neither the 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 and (ii) either (a) such
substitution is at the unilateral option of the Mortgagor or otherwise occurs
automatically pursuant to the terms of the Mortgage Loan in effect on the
Startup Day, within the meaning of Treasury Regulations Section 1.1001-3, or (b)
it has received an Opinion of Counsel to the effect that such substitution would
not be a "significant modification" of the Mortgage Loan and/or Companion Loan
within the meaning of Treasury Regulations Section 1.860G-2(b).
(b) If the Special Servicer determines that a modification, waiver
or amendment (including, without limitation, the forgiveness or deferral of
interest or principal or the substitution of collateral pursuant to the terms of
the Mortgage Loan and/or Companion Loan or otherwise, the release of collateral
or the pledge of additional collateral) of the terms of a Specially Serviced
Mortgage Loan with respect to which a payment default or other material default
has occurred or a payment default or other material default is, in the Special
Servicer's judgment, reasonably foreseeable (as evidenced by an Officer's
Certificate of the Special Servicer), is reasonably likely to produce a greater
recovery on a net present value basis (the relevant discounting to be performed
at the related Mortgage Rate) to the Trust and, if applicable, the Companion
Holders as the holders of such Companion Loans than liquidation of such
Specially Serviced Mortgage Loan, then the Special Servicer may agree to a
modification, waiver or amendment of such Specially Serviced Mortgage Loan,
subject to (x) the provisions of this Section 3.20(b) and Section 3.20(c), (y)
the approval of the Directing Certificateholder as provided in Section 3.21 and
(z) with respect to an AB Mortgage Loan, the rights of the related Companion
Holder, to advise and consult with the Special Servicer with respect to, or
consent to, such modification, waiver or amendment pursuant to the terms of the
related Intercreditor Agreement.
The Special Servicer shall use its reasonable efforts to the extent
possible to cause each Specially Serviced Mortgage Loan to fully amortize prior
to the Rated Final Distribution Date and shall not agree to a modification,
waiver or amendment of any term of any Specially Serviced Mortgage Loan if such
modification, waiver or amendment would extend the maturity date of any such
Specially Serviced Mortgage Loan to a date occurring later than the earlier of
(a) two years prior to the Rated Final Distribution Date and (b) if such
Specially Serviced Mortgage Loan is secured by a leasehold estate and not also
the related fee interest, the date occurring twenty years or, to the extent
consistent with the Servicing Standards giving due consideration to the
remaining term of the ground lease, with the consent of the Directing
Certificateholder, ten years prior to the expiration of such leasehold estate.
(c) Any provision of this Section 3.20 to the contrary
notwithstanding, except when a Mortgage Loan and/or Companion Loan is in default
or default with respect thereto is reasonably foreseeable, no fee described in
this paragraph shall be collected by any Master Servicer or Special Servicer
from a Mortgagor (or on behalf of the Mortgagor) in conjunction with any consent
or any modification, waiver or amendment of a Mortgage Loan or Companion Loan,
as applicable (unless the amount thereof is specified in the related Mortgage
Note) if the collection of such fee would cause such consent, modification,
waiver or amendment to be a "significant modification" of the Mortgage Note
within the meaning of Treasury Regulations Section 1.860G-2(b).
(d) The Special Servicer may, consistent with the Servicing
Standards, agree to any waiver, modification or amendment of a Mortgage Loan or
Companion Loan that is not in default or as to which default is not reasonably
foreseeable, if it consults with counsel (and, if determined by the Special
Servicer to be necessary, provides the Trustee with an Opinion of Counsel (at
the expense of the related Mortgagor or such other Person requesting such
modification or, if such expense cannot be collected from the related Mortgagor
or such other Person, to be paid out of the Certificate Account pursuant to
Section 3.05(a); provided that the applicable Master Servicer or Special
Servicer, as the case may be, shall use its reasonable efforts to collect such
fee from the Mortgagor or such other Person to the extent permitted under the
related Mortgage Loan documents)) to obtain advice regarding whether the
contemplated waiver, modification or amendment (i) will not be a "significant
modification" of the Mortgage Loan within the meaning of Treasury Regulations
Section 1.860G-2(b) and (ii) will not cause (x) either the Lower-Tier REMIC or
the Upper-Tier REMIC to fail to qualify as a REMIC for purposes of the Code or
(y) either the Lower-Tier REMIC or the Upper-Tier REMIC to be subject to any tax
under the REMIC Provisions. Notwithstanding the foregoing, neither the
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 R or Class LR Certificates).
(f) Subject to Section 3.20(c), the Master Servicers 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; provided, that
the charging of such fee is not a "significant modification" of the Mortgage
Loan within the meaning of Treasury Regulations Section 1.860G-2(b).
(g) All modifications (including extensions), waivers and amendments
of the Mortgage Loans and/or Companion Loans entered into pursuant to this
Section 3.20 shall be in writing, signed by the 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 applicable Master Servicer and the Special Servicer
shall notify the Rating Agencies, the Trustee, the Directing Certificateholder,
the applicable Companion Holder, the Mortgage Loan Sellers (if such Mortgage
Loan Seller is not a servicer, Sub-Servicer of such Mortgage Loan or the
Directing Certificateholder), if any, and each other in writing of any
modification, waiver or amendment of any term of any Mortgage Loan or Companion
Loan and the date thereof, and shall deliver to the Trustee or the related
Custodian with a copy to the Master Servicer (if such notice is being delivered
by the Special Servicer) for deposit in the related Mortgage File, an original
counterpart of the agreement relating to such modification, waiver or amendment,
promptly (and in any event within 10 Business Days) following the execution
thereof, with a copy to the applicable Companion Holder, if any. Following
receipt of the applicable Master Servicer's or the Special Servicer's, as
applicable, delivery of the aforesaid modification, waiver or amendment to the
Paying Agent, the Paying Agent shall forward a copy thereof to each Holder of a
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P,
Class Q or Class NR Certificate upon request.
(i) 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 unless such
defeasance complies with Treasury Regulations Section 1.860G-2(a)(8) and the
applicable Master Servicer or the Special Servicer, as the case may be, has
received (i) replacement collateral consisting of government securities within
the meaning of Treasury Regulations Section 1.860G-2(a)(8)(i) (including, if the
Mortgage Loan provides only for U.S. Treasury obligations, such other government
securities, within the meaning of Section 2(a)(16) of the Investment Company Act
of 1940, as are acceptable to the Rating Agencies, provided that the Mortgagor
has furnished the Master Servicer or the Special Servicer, as applicable, with
an Opinion of Counsel that acceptance of such substitute securities will not
cause an Adverse REMIC Event), in an amount sufficient to make all scheduled
payments under the Mortgage Loan (or defeased portion thereof) when due (and
assuming, in the case of a Mortgage Loan with an anticipated repayment date, to
the extent consistent with the related Mortgage Loan documents, that such
Mortgage Loan matures on its anticipated repayment date), (ii) a certificate of
an Independent certified public accountant to the effect that such substituted
property will provide cash flows sufficient to meet all payments of interest and
principal (including payments at maturity) on such Mortgage Loan in compliance
with the requirements of the terms of the related Mortgage Loan documents and,
if applicable, Companion Loan documents, (iii) one or more Opinions of Counsel
(at the expense of the related Mortgagor) to the effect that the Trustee, on
behalf of the Trust Fund, will have a first priority perfected security interest
in such substituted Mortgaged Property; provided, however, that, to the extent
consistent with the related Mortgage Loan documents and, if applicable,
Companion Loan documents, the related Mortgagor shall pay the cost of any such
opinion as a condition to granting such defeasance, (iv) to the extent
consistent with the related Mortgage Loan documents, the Mortgagor shall
establish a single purpose entity to act as a successor Mortgagor, if so
required by the Rating Agencies, (v) to the extent permissible under the related
Mortgage Loan documents and, if applicable, Companion Loan documents, 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 (vi) 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; provided, however, that no such confirmation: (a) from S&P shall
be required to the extent that the applicable Master Servicer has delivered a
defeasance certificate substantially in the form of Exhibit T for any Mortgage
Loan which (together with any Mortgage Loans cross collateralized with such
Mortgage Loans) is: (i) a Mortgage Loan with a Cut-off Date Principal Balance
less than $35,000,000, (ii) a Mortgage Loan that represents less than 5% of the
Cut-off Date Principal Balance of all Mortgage Loans, and (iii) a Mortgage Loan
that is not one of the ten largest Mortgage Loans by Stated Principal Balance;
and (b) the applicable Master Servicer or Special Servicer, as the case may be,
shall not be required to obtain the Xxxxx'x confirmation referenced in clause
(v) above with respect to any Mortgage Loan which has a Stated Principal Balance
less than $20,000,000 and represents less than 5% of the Stated Principal
Balance of all the Mortgage Loans, so long as such Mortgage Loan is not one of
the ten largest Mortgage Loans by Stated Principal Balance. Notwithstanding the
foregoing, in the event that requiring the Mortgagor to pay for the items
specified in clauses (ii), (iv) and (v) in the preceding sentence would be
inconsistent with the related Mortgage Loan documents, such reasonable costs
shall be paid by the related Mortgage Loan Seller as set forth in the first
paragraph of Section 2.03(b).
(j) Notwithstanding anything herein or in the related Mortgage Loan
documents and, if applicable, Companion Loan documents to the contrary, the
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 (or any portion thereof), in lieu of the defeasance
collateral specified in the related Mortgage Loan or Companion Loan documents;
provided that such substitution is consistent with the Servicing Standards and
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, to the extent permitted under the Mortgage Loan documents or
as may be consistent with the Servicing Standard an Opinion of Counsel (at the
expense of the Mortgagor to the extent permitted under the Mortgage Loan
documents and, if applicable, Companion Loan documents or otherwise as a Trust
Fund expense) to the effect that such use would not be and would not constitute
a "significant modification" of such Mortgage Loan or Companion Loan pursuant to
Treasury Regulations Section 1.860G-2(b) and would not otherwise constitute an
Adverse REMIC Event with respect to any REMIC and provided, further, that the
requirements set forth in Section 3.20(i) (including the ratings confirmations)
are satisfied; and provided, further, that such securities are backed by the
full faith and credit of the United States government, or the 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.
(k) 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).
(l) 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 general collections) from the
Rating Agencies that such action will not result in a qualification, downgrade
or withdrawal of any of the ratings assigned by such Rating Agency to the
Certificates, 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 $35,000,000, or if the Mortgage Loan is one of the ten largest Mortgage
Loans by Stated Principal Balance.
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 Master Servicers or the Special
Servicer, as the case may be, 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 Paying
Agent and the Directing Certificateholder a copy of the notice of such Servicing
Transfer Event provided by such Master Servicer to such Special Servicer, or by
the Special Servicer to such Master Servicer, pursuant to this Section. The
Paying Agent shall deliver to each Controlling Class Certificateholder a copy of
the notice of such Servicing Transfer Event provided by the 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 applicable Master Servicer to service and administer such
Mortgage Loan and, if applicable, the Companion Loan, shall recommence.
(b) In servicing any Specially Serviced Mortgage Loans and Companion
Loans, the Special Servicer will provide to the Trustee originals of documents
included within the definition of "Mortgage File" for inclusion in the related
Mortgage File to the extent within its possession or created by it (with a copy
of each such original to the 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), the Master
Servicers 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 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the AmeriCold
Portfolio Mortgage Loan) and shall provide the Special Servicer with any
information in its possession with respect to such records to enable the Special
Servicer to perform its duties under this Agreement, provided that this
statement shall not be construed to require 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 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the
AmeriCold Portfolio Mortgage Loan) and, if applicable, the Companion Loan, the
Special Servicer shall deliver to the applicable Master Servicer, each Rating
Agency, the Trustee, the Paying Agent, each related Companion Holder and the
Directing Certificateholder, a report (the "Asset Status Report") with respect
to such Mortgage Loan or Companion Loan and the related Mortgaged Property;
provided, however, the Special Servicer shall not be required to deliver an
Asset Status Report to the Directing Certificateholder if they are the same
entity. Such Asset Status Report shall set forth the following information to
the extent reasonably determinable based on the information that was delivered
to the Special Servicer in connection with the transfer of servicing pursuant to
the Servicing Transfer Event:
(i) summary of the status of such Specially Serviced Mortgage Loan
and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standards, that are applicable to the exercise of remedies as aforesaid
and to the enforcement of any related guaranties or other collateral for
the related Mortgage Loan and whether outside legal counsel has been
retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Mortgage Loan might be returned to performing status and returned
to the 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 Business Days of receiving an Asset Status Report, the
Directing Certificateholder does not disapprove such Asset Status Report in
writing, the Special Servicer shall implement the recommended action as outlined
in such Asset Status Report and shall promptly furnish the applicable Mortgage
Loan Seller with a copy thereof; provided, however, that the Special Servicer
may not take any action that is contrary to applicable law, the Servicing
Standards or the terms of the applicable Mortgage Loan documents. If the
Directing Certificateholder disapproves such Asset Status Report within 10
Business Days of receipt, the Special Servicer will revise such Asset Status
Report and deliver to the Directing Certificateholder, the Rating Agencies, the
applicable Mortgage Loan Seller, the Trustee and the applicable Master Servicer
a new Asset Status Report as soon as practicable, but in no event later than 30
days after such disapproval. The Special Servicer shall revise such Asset Status
Report as described above in this Section 3.21(d) until the Directing
Certificateholder shall fail to disapprove such revised Asset Status Report in
writing within ten (10) Business Days of receiving such revised Asset Status
Report or until the Special Servicer makes one of the determinations described
below. Notwithstanding the foregoing, in the event the Directing
Certificateholder and the Special Servicer have been unable to agree upon an
Asset Status Report with respect to a Specially Serviced Mortgage Loan within 90
days of the Directing Certificateholder's receipt of the initial Asset Status
Report, the Special Servicer subject to the rights of the related Companion
Holder pursuant to the related Intercreditor Agreement, if applicable, shall
implement the actions directed by the Directing Certificateholder unless such
actions would violate the Servicing Standard, in which case the Special Servicer
shall implement actions described in the most recent Asset Status Report
submitted to the Directing Certificateholder by the Special Servicer, and the
Special Servicer shall promptly furnish the applicable Mortgage Loan Seller with
a copy of any Asset Status Report which the Special Servicer intends to or
commences to implement pursuant to this Section 3.21(d). The Special Servicer
may, from time to time, modify any Asset Status Report it has previously
delivered and implement such report, provided such report shall have been
prepared, reviewed and not rejected pursuant to the terms of this Section.
Notwithstanding the foregoing, the Special Servicer (i) may, following the
occurrence of an extraordinary event with respect to the related Mortgaged
Property, take any action set forth in such Asset Status Report before the
expiration of a ten (10) Business Day period if the Special Servicer has
reasonably determined that failure to take such action would materially and
adversely affect the interests of the Certificateholders or, if a Loan Pair 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 applicable
Mortgage Loan Seller, the Trustee (upon request) and each Rating Agency.
Subject to the rights of the related Companion Holder to advise the
Special Servicer with respect to, or consent to, such modification, waiver or
amendment pursuant to the terms of the related Intercreditor Agreement, the
Special Servicer shall have the authority to meet with the Mortgagor for any
Specially Serviced Mortgage Loan and take such actions consistent with the
Servicing Standards and the related Asset Status Report. The Special Servicer
shall not take any action inconsistent with the related Asset Status Report,
unless such action would be required in order to act in accordance with the
Servicing Standards.
No direction or disapproval of the Directing Certificateholder
hereunder or failure of the Directing Certificateholder to consent to or approve
(including any deemed consents or approvals) any request of the Special
Servicer, shall (a) require or cause the Special Servicer to violate the terms
of a Specially Serviced Mortgage Loan, applicable law or any provision of this
Agreement, including the Special Servicer's obligation to act in accordance with
the Servicing Standards and to maintain the REMIC status of each of the
Lower-Tier REMIC and the Upper-Tier REMIC, or (b) result in the imposition of a
"prohibited transaction" or "prohibited contribution" tax under the REMIC
Provisions, or (c) expose the Master Servicers, the Special Servicer, the
Depositor, the Mortgage Loan Sellers, the Trust Fund, the Trustee, the Paying
Agent or their respective officers, directors, employees or agents to any claim,
suit or liability or (d) materially expand the scope of the Special Servicer's,
Trustee's or each Master Servicer's responsibilities under this Agreement.
(e) Upon receiving notice of (i) the occurrence of the events
described in clause (iv) of the definition of Servicing Transfer Event (without
regard to the 60 day period set forth therein), or (ii) the request by a
Mortgagor for the amendment or modification of a Mortgage Loan or Companion Loan
which is not a Specially Serviced Mortgage Loan for which the Special Servicer
is responsible for such amendment or modification pursuant to Section 3.08 and
Section 3.20, the 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 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 for the benefit of the
Certificateholders, the related Companion Holder (if applicable) and the Trustee
(as holder of the Uncertificated Lower-Tier Interests) shall be a third party
beneficiary under such Sub-Servicing Agreement, but that (except to the extent
the Trustee or its designee assumes the obligations of the applicable Master
Servicer thereunder as contemplated by the immediately preceding clause (ii))
none of the Trust Fund, the Trustee, the Paying Agent, the Special Servicer, any
successor Master Servicer or any Certificateholder (or the related Companion
Holder, if applicable) shall have any duties under such Sub-Servicing Agreement
or any liabilities arising therefrom; (iv) permits any purchaser of a Mortgage
Loan pursuant to this Agreement to terminate such Sub-Servicing Agreement with
respect to such purchased Mortgage Loan at its option and without penalty;
provided, however, that the Initial Sub-Servicing Agreements may only be
terminated by the Trustee or its designees as contemplated by Section 3.22(g)
hereof and in such additional manner and by such other Persons as is provided in
such Sub-Servicing Agreement; (v) does not permit the Sub-Servicer any direct
rights of indemnification that may be satisfied out of assets of the Trust Fund;
and (vi) does not permit the Sub-Servicer to modify any Mortgage Loan unless and
to the extent the 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 applicable 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, in each case
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 applicable 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 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 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 Certificateholders or the Trust Fund) monitor the
performance and enforce the obligations of each Sub-Servicer under the related
Sub-Servicing Agreement. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of Sub-Servicing Agreements in
accordance with their respective terms and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as is in accordance with the Servicing Standards. 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 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
applicable Master Servicer shall remain obligated and responsible to the
Trustee, the Special Servicer, holders of the Companion Loans serviced hereunder
and the Certificateholders for the performance of its obligations and duties
under this Agreement in accordance with the provisions hereof to the same extent
and under the same terms and conditions as if it alone were servicing and
administering the Mortgage Loans for which it is responsible, and the Master
Servicer shall pay the fees of any Sub-Servicer thereunder as and when due from
its own funds. In no event shall the Trust Fund bear any termination fee
required to be paid to any Sub-Servicer as a result of such Sub-Servicer's
termination under any Sub-Servicing Agreement.
(f) The Trustee shall furnish to any Sub-Servicer any powers of
attorney and other documents necessary or appropriate to enable such
Sub-Servicer to carry out its servicing and administrative duties under any
Sub-Servicing Agreement; provided, however, that the Trustee shall not be held
liable for any negligence, and shall be indemnified by the Sub-Servicer, with
respect to, or misuse of, any such power of attorney by a Sub-Servicer, and
provided further that the use of such power of attorney by a Sub-Servicer is
subject to the last sentence of Section 3.01(b).
(g) Each Sub-Servicing Agreement shall provide that, in the event
the Trustee or any other Person becomes successor Master Servicer, the Trustee
or such successor Master Servicer shall have the right to terminate such
Sub-Servicing Agreement with or without cause and without a fee. Notwithstanding
the foregoing or any other contrary provision in this Agreement, the Trustee and
any successor Master Servicer shall assume each Initial Sub-Servicing Agreement
and (i) the Initial Sub-Servicer's rights and obligations under the Initial
Sub-Servicing Agreement shall expressly survive a termination of the Master
Servicer's servicing rights under this Agreement; provided that the Initial
Sub-Servicing Agreement has not been terminated in accordance with its
provisions; (ii) any successor Master Servicer, including, without limitation,
the Trustee (if it assumes the servicing obligations of the Master Servicer)
shall be deemed to automatically assume and agree to the then-current Initial
Sub-Servicing Agreement without further action upon becoming the successor
Master Servicer and (iii) this Agreement may not be modified in any manner which
would increase the obligations or limit the rights of the Initial Sub-Servicer
hereunder and/or under the Initial Sub-Servicing Agreement, without the prior
written consent of the Initial Sub-Servicer (which consent shall not be
unreasonably withheld).
(h) With respect to Mortgage Loans subject to a Sub-Servicing
Agreement, the Special Servicer shall, to the extent required, remit amounts,
deliver reports and information, and afford access to facilities and information
to the related Sub-Servicer that would be required to be remitted, delivered or
afforded, as the case may be, to the 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 Xxxxx'x that such agreement will not cause the downgrade,
withdrawal or qualification of any of the current ratings assigned to any Class
of Certificates.
Section 3.23 Representations, Warranties and Covenants of the Master
Servicers. (a) The Master Servicer No. 1 hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Depositor, the Paying Agent, the Master Servicer No. 2 and the Special
Servicer, as of the Closing Date, that:
(i) The Master Servicer No. 1 is a corporation, duly organized,
validly existing and in good standing under the laws of California, and
the Master Servicer No. 1 is in compliance with the laws of each State in
which any Mortgaged Property is located to the extent necessary to perform
its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Master
Servicer No. 1, and the performance and compliance with the terms of this
Agreement by the Master Servicer No. 1, will not (A) violate the Master
Servicer No. 1's organizational documents, (B) constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets or (C) violate any law, rule, regulation, order,
judgment or decree to which the Master Servicer No. 1 or its property is
subject, which, in the case of either (B) or (C), is likely to materially
and adversely affect either the ability of the Master Servicer No. 1 to
perform its obligations under this Agreement or its financial condition;
(iii) The Master Servicer No. 1 has the full power and authority to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Master Servicer No. 2, the Special Servicer,
the Paying Agent and the Depositor, constitutes a valid, legal and binding
obligation of the Master Servicer No. 1, enforceable against the Master
Servicer No. 1 in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law;
(v) The Master Servicer No. 1 is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of any law, order or decree of any court or arbiter, or any
order regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Master Servicer No. 1's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Master Servicer No. 1 to perform its
obligations under this Agreement or the financial condition of the Master
Servicer No. 1;
(vi) No litigation is pending or, to the best of the Master Servicer
No. 1's knowledge, threatened against the Master Servicer No. 1, the
outcome of which, in the Master Servicer No. 1's good faith and reasonable
judgment, could reasonably be expected to prohibit the Master Servicer No.
1 from entering into this Agreement or materially and adversely affect
either the ability of the Master Servicer No. 1 to perform its obligations
under this Agreement;
(vii) The Master Servicer No. 1 has errors and omissions insurance
coverage which is in full force and effect and complies with the
requirements of Section 3.07 hereof;
(viii) No consent, approval, authorization or order, registration,
filing with or notice to any governmental authority or court is required
under federal or state law, for the execution, delivery and performance by
the Master Servicer No. 1, or compliance by the Master Servicer No. 1
with, this Agreement or the consummation of any transactions contemplated
hereby, other than (A) such consents, approvals, authorizations,
qualifications, registrations, filings or notices as have been obtained or
made and (B) where the lack of such consent, approval, authorization,
qualification, registration, filing or notice would not have a material
adverse effect on the performance by the Master Servicer No. 1 under this
Agreement; and
(ix) The Master Servicer No. 1 has 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.
(b) The Master Servicer No. 2 hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders and to
the Depositor, the Paying Agent, the Master Servicer No. 1 and the Special
Servicer, as of the Closing Date, that:
(i) The Master Servicer No. 2 is a national banking association,
duly organized, validly existing and in good standing under the laws of
the United States, and the Master Servicer No. 2 is in compliance with the
laws of each State in which any Mortgaged Property is located to the
extent necessary to perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Master
Servicer No. 2, and the performance and compliance with the terms of this
Agreement by the Master Servicer No. 2, will not (A) violate the Master
Servicer No. 2's organizational documents, (B) constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets or (C) violate any law, rule, regulation, order,
judgment or decree to which the Master Servicer No. 2 or its property is
subject, which, in the case of either (B) or (C), is likely to materially
and adversely affect either the ability of the Master Servicer No. 2 to
perform its obligations under this Agreement or its financial condition;
(iii) The Master Servicer No. 2 has the full power and authority to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Master Servicer No. 1, the Special Servicer,
the Paying Agent and the Depositor, constitutes a valid, legal and binding
obligation of the Master Servicer No. 2, enforceable against the Master
Servicer No. 2 in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law;
(v) The Master Servicer No. 2 is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of any law, order or decree of any court or arbiter, or any
order regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Master Servicer No. 2's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Master Servicer No. 2 to perform its
obligations under this Agreement or the financial condition of the Master
Servicer No. 2;
(vi) No litigation is pending or, to the best of the Master Servicer
No. 2's knowledge, threatened against the Master Servicer No. 2, the
outcome of which, in the Master Servicer No. 2's good faith and reasonable
judgment, could reasonably be expected to prohibit the Master Servicer No.
2 from entering into this Agreement or materially and adversely affect
either the ability of the Master Servicer No. 2 to perform its obligations
under this Agreement;
(vii) The Master Servicer No. 2 has errors and omissions insurance
coverage which is in full force and effect and complies with the
requirements of Section 3.07 hereof;
(viii) No consent, approval, authorization or order, registration,
filing with or notice to any governmental authority or court is required
under federal or state law, for the execution, delivery and performance by
the Master Servicer No. 2, or compliance by the Master Servicer No. 2
with, this Agreement or the consummation of any transactions contemplated
hereby, other than (A) such consents, approvals, authorizations,
qualifications, registrations, filings or notices as have been obtained or
made and (B) where the lack of such consent, approval, authorization,
qualification, registration, filing or notice would not have a material
adverse effect on the performance by the Master Servicer No. 2 under this
Agreement; and
(ix) The Master Servicer No. 2 has 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.
(c) The representations and warranties set forth in paragraphs (a)
and (b) above shall survive the execution and delivery of this Agreement.
Section 3.24 Representations, Warranties and Covenants of the
Special Servicer. (a) The Special Servicer hereby represents, warrants and
covenants to the Trustee, for its own benefit and the benefit of the
Certificateholders, the Depositor 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 Florida, and the Special
Servicer is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, do not (A) violate the Special
Servicer's organizational documents or articles of incorporation, as
applicable, and by laws or (B) constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any material agreement or other material
instrument to which it is a party or which is applicable to it or any of
its assets, or (C) violate any law, rule, regulation, order, judgment or
decree to which the Special Servicer or its property is subject, which, in
the case of either (B) or (C), is likely to materially and adversely
affect either the ability of the Special Servicer to perform its
obligations under this Agreement or its financial condition;
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions to be performed by it contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law;
(v) The Special Servicer is not in default with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, local or governmental agency, which default, in the
Special Servicer's reasonable judgment is likely to materially and
adversely affect the financial condition or operations of the Special
Servicer or its properties taken as a whole or its ability to perform its
duties and obligations hereunder;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment is likely to
materially and adversely affect the ability of the Special Servicer to
perform its obligations under this Agreement;
(vii) The Special Servicer has errors and omissions coverage which
is in full force and effect and complies with the requirements of Section
3.07 hereof; and
(viii) No consent, approval, authorization or order of any court or
governmental agency or body under federal or state law is required for the
execution, delivery and performance by the Special Servicer, or compliance
by the Special Servicer with, this Agreement or the consummation of the
transactions of the Special Servicer contemplated by this Agreement,
except for any consent, approval, authorization or order which has been
obtained or can be obtained prior to the actual performance by the Special
Servicer of its obligations under this Agreement, and which, if not
obtained would not have a materially adverse effect on the ability of the
Special Servicer to perform its obligations hereunder.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.25 Interest Reserve Account. (a) On each P&I Advance Date
relating to any Interest Accrual Period ending in any January and on any P&I
Advance Date which occurs in a year which is not a leap year relating to any
Interest Accrual Period ending in any December (unless in either such case, the
related Distribution Date is the final Distribution Date), the Paying Agent, in
respect of the Actual/360 Mortgage Loans, shall deposit into the Interest
Reserve Account, an amount equal to one day's interest on the Stated Principal
Balance of the Interest Reserve Loans as of the Due Date occurring in the month
preceding the month in which such P&I Advance Date occurs at the related Net
Mortgage Rate, to the extent a full Monthly Payment or P&I Advance is made in
respect thereof (all amounts so deposited in any consecutive February and
January, "Withheld Amounts").
(b) On each P&I Advance Date occurring in March (or February, if the
related Distribution Date is the final Distribution Date), the Paying Agent
shall withdraw, from the Interest Reserve Account an amount equal to the
Withheld Amounts from the preceding January and February (if applicable), if
any, and deposit such amount into the Lower-Tier Distribution Account.
Section 3.26 [Reserved].
Section 3.27 Directing Certificateholder Contact with Master
Servicers and Special Servicer. 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 3.28 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of Directing Certificateholder. (a)
Each Controlling Class Certificateholder is hereby deemed to have agreed by
virtue of its purchase of a Certificate to provide its name and address to the
Paying Agent and to notify the Master Servicer, the Paying Agent and Special
Servicer of the transfer of any Certificate of a Controlling Class, the
selection of a Directing Certificateholder or the resignation or removal
thereof. The Directing Certificateholder is hereby deemed to have agreed by
virtue of its purchase of a Certificate to notify the Master Servicers, Special
Servicer and Paying Agent when such Certificateholder is appointed Directing
Certificateholder and when it is removed or resigns. To the extent there is only
one Controlling Class Certificateholder and it is also the Special Servicer, it
shall be the Directing Certificateholder.
(b) Once a Directing Certificateholder has been selected, each of
the Master Servicers, the Special Servicer, the Depositor, the Trustee, the
Paying Agent and each other Certificateholder (or Certificate Owner, if
applicable) shall be entitled to rely on such selection unless a majority of the
Controlling Class Certificateholders, by Certificate Balance, or such Directing
Certificateholder shall have notified the Master Servicers, Special Servicer,
the Trustee, the Paying Agent and each other Controlling Class
Certificateholder, in writing, of the resignation of such Directing
Certificateholder or the selection of a new Directing Certificateholder. Upon
the resignation of a Directing Certificateholder, the Paying Agent shall request
the Controlling Class Certificateholders to select a new Directing
Certificateholder.
(c) Until it receives notice to the contrary, each of the Master
Servicers, the Special Servicer, the Paying Agent and the Trustee shall be
entitled to rely on the most recent notification with respect to the identity of
the Controlling Class Certificateholder and the Directing Certificateholder.
(d) Upon request, the Paying Agent shall deliver to the Trustee, the
Special Servicer and the Master 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 Paying Agent shall
notify the Trustee, the Master Servicers and the Special Servicer.
Notwithstanding the foregoing, CRES Investment NO. I, LP shall be the initial
Directing Certificateholder and shall remain so until a successor is appointed
pursuant to the terms of this Agreement.
Until it receives notice to the contrary, each of the Master
Servicer, the Special Servicers, the Paying Agent and the Trustee shall be
entitled to rely on the preceding sentence with respect to the identity of the
Directing Certificateholder.
(e) If at any time a Book-Entry Certificate belongs to a Controlling
Class, the Paying Agent shall notify the related Certificateholders (through the
Depository) of such event.
(f) Each Certificateholder acknowledges and agrees, by its
acceptance of its Certificates, that: (i) the Directing Certificateholder may
have special relationships and interests that conflict with those of Holders of
one or more Classes of Certificates; (ii) the Directing Certificateholder may
act solely in the interests of the Holders of the Controlling Class; (iii) the
Directing Certificateholder does not have any liability or duties to the Holders
of any Class of Certificates other than the Controlling Class; (iv) the
Directing Certificateholder may take actions that favor interests of the Holders
of the Controlling Class over the interests of the Holders of one or more other
Classes of Certificates; and (v) the Directing Certificateholder shall have no
liability whatsoever (other than to a Controlling Class Certificateholder) for
having so acted, and no Certificateholder may take any action whatsoever against
the Directing Certificateholder or any director, officer, employee, agent or
principal thereof for having so acted.
(g) All requirements of the Master 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 AB Mortgage Loan.
Section 3.29 Intercreditor Agreements. Each of the Master Servicers
and Special Servicer acknowledges and agrees that each Loan Pair being serviced
under this Agreement and each Mortgage Loan with mezzanine debt is subject to
the terms and provisions of the related Intercreditor Agreement and each agrees
to service each such Loan Pair and each Mortgage Loan with mezzanine debt in
accordance with the related Intercreditor Agreement and this Agreement,
including, without limitation, effecting distributions and allocating
reimbursement of expenses in accordance with the related Intercreditor Agreement
and, subject to Section 3.11(e) hereof, in the event of any conflict between the
provisions of this Agreement and the related Intercreditor Agreement, the
related Intercreditor Agreement shall govern. Notwithstanding anything contrary
in this Agreement, each of the Master Servicers and Special Servicer agrees not
to take any action with respect to a Loan Pair or a Mortgage Loan with mezzanine
debt or the related Mortgaged Property without the prior consent of the related
Companion Holder or mezzanine lender, as applicable, to the extent that the
related Intercreditor Agreement provides that such Companion Holder or mezzanine
lender, as applicable, is required to consent to such action. Each of the Master
Servicer and Special Servicer acknowledges and agrees that each Companion Holder
and mezzanine lender or its respective designee has the right to purchase the
related Mortgage Loan pursuant to the terms and conditions of the related
Intercreditor Agreement to the extent provided for therein.
Neither the Master 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 or mezzanine lender under the related Intercreditor
Agreement or conflict between the terms of this Agreement and the terms of such
Intercreditor Agreement. Notwithstanding any provision of any Intercreditor
Agreement that may otherwise require the Master Servicers or the Special
Servicer to abide by any instruction or direction of a Companion Holder or
mezzanine lender, 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 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 or mezzanine lender unless
such Companion Holder or mezzanine lender has delivered notice of its identity
and contact information to each of the parties to this Agreement (upon which
notice each of the parties to this Agreement shall be conclusively entitled to
rely). As of the Closing Date, the contact information for the Companion Holders
and mezzanine lenders is as set forth in the related Intercreditor Agreement, or
as otherwise set forth in Section 12.05 of this Agreement.
No direction or disapproval of the Companion Holders or the
mezzanine lenders shall (a) require or cause the Master Servicers or Special
Servicer to violate the terms of a Mortgage Loan, applicable law or any
provision of this Agreement, including the applicable Master Servicer's or
Special Servicer's obligation to act in accordance with the Servicing Standards
and to maintain the REMIC status of each of the Lower-Tier REMIC and the
Upper-Tier REMIC or (b) result in the imposition of a "prohibited transaction"
or "prohibited contribution" tax under the REMIC Provisions, or (c) materially
expand the scope of the Special Servicer's, Trustee's, the Paying Agent's or
each Master Servicer's responsibilities under this Agreement.
Section 3.30 Companion Paying Agent. (a) With respect to each of the
Companion Loans, each Master Servicer shall be the Companion Paying Agent
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. Each Companion Paying Agent shall not be
liable except for the performance of such duties and obligations, no implied
covenants or obligations shall be read into this Agreement against 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) In the case of each of the Companion Loans, upon the resignation
or removal of the applicable Master Servicer pursuant to Article VII of this
Agreement, the applicable Master Servicer, as the Companion Paying Agent, shall
be deemed simultaneously to resign or be removed.
(d) This Section shall survive the termination of this Agreement or
the resignation or removal of a Companion Paying Agent, as regards rights
accrued prior to such resignation or removal.
Section 3.31 Companion Register. Each Companion Paying Agent shall
maintain a register (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 and address, are listed on Exhibit Q 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 3.32 Certain Matters Relating to the 000 Xxxxxxxxx Xxxxxx
Mortgage Loan. (a) In the event that any of the 000 Xxxxxxxxx Xxxxxx Trustee,
the 000 Xxxxxxxxx Xxxxxx Co-Trustee, the 000 Xxxxxxxxx Xxxxxx Master Servicer or
the 000 Xxxxxxxxx Xxxxxx Special Servicer shall be replaced in accordance with
the terms of the 0000-XXX00 Xxxxxxx Agreement, the applicable Master Servicer
and the Special Servicer shall acknowledge its successor as the successor to the
000 Xxxxxxxxx Xxxxxx Trustee, the 000 Xxxxxxxxx Xxxxxx Co-Trustee, the 000
Xxxxxxxxx Xxxxxx Master Servicer or the 000 Xxxxxxxxx Xxxxxx Special Servicer,
as the case may be.
(b) The applicable Master Servicer shall deliver, or cause to be
delivered, to the Paying Agent, promptly following receipt from the 000
Xxxxxxxxx Xxxxxx Master Servicer, the 000 Xxxxxxxxx Xxxxxx Special Servicer, the
000 Xxxxxxxxx Xxxxxx Trustee or the 000 Xxxxxxxxx Xxxxxx Co-Trustee any
servicing reports concerning the 000 Xxxxxxxxx Xxxxxx Whole Loan.
Section 3.33 Certain Matters Relating to the AmeriCold Portfolio
Mortgage Loan. (a) In the event that any of the AmeriCold Portfolio Trustee, the
AmeriCold Portfolio Master Servicer, the AmeriCold Portfolio Special Servicer or
the AmeriCold Portfolio Primary Servicer shall be replaced in accordance with
the terms of the 2007-CIBC18 Pooling Agreement, the applicable Master Servicer
and the Special Servicer shall acknowledge its successor as the successor to the
AmeriCold Portfolio Trustee, the AmeriCold Portfolio Master Servicer, the
AmeriCold Portfolio Special Servicer or the AmeriCold Portfolio Primary
Servicer, as the case may be.
(b) The applicable Master Servicer shall deliver, or cause to be
delivered, to the Paying Agent, promptly following receipt from the AmeriCold
Portfolio Master Servicer, the AmeriCold Portfolio Special Servicer, the
AmeriCold Portfolio Primary Servicer or the AmeriCold Portfolio Trustee, any
servicing reports concerning the AmeriCold Portfolio Whole Loan.
Section 3.34 Litigation Control.
(a) (i) The Special Servicer shall, (1) direct, manage, prosecute
and/or defend any action brought by a Mortgagor against the Trust and/or the
Special Servicer and (2) represent the interests of the Trust in any litigation
relating to the rights and obligations of the Mortgagor or mortgagee, or the
enforcement of the obligations of a Mortgagor, under the Mortgage Loan Documents
("Trust-Related Litigation").
(ii) To the extent a Master Servicer is named in Trust-Related
Litigation, and the Trust or Special Servicer is not named, in order to
effectuate the role of the Special Servicer, such Master Servicer shall
(1) notify the Special Servicer of such Trust Related Litigation within
ten (10) days of such Master Servicer receiving service of such Trust
Related Litigation; (2) provide monthly status reports to the Special
Servicer, regarding such Trust-Related Litigation; (3) seek to have the
Trust replace such Master Servicer as the appropriate party to the
lawsuit; and (4) so long as such Master Servicer remains a party to the
lawsuit, consult with and act at the direction of the Special Servicer
with respect to decisions and resolutions related to the interests of the
Trust in such Trust-Related Litigation, including but not limited to the
selection of counsel, provided, however, if there are claims against such
Master Servicer and such Master Servicer has not determined that separate
counsel is required for such claims, such counsel shall be reasonably
acceptable to such Master Servicer.
(iii) Notwithstanding the right of the Special Servicer to represent
the interests of the Trust in Trust-Related Litigation, and subject to the
rights of the Special Servicer to direct the Master Servicer's actions in
Section 3.34(a)(iv) below, the applicable Master Servicer shall retain the
right to make determinations relating to claims against the applicable
Master Servicer, including but not limited to the right to engage separate
counsel if necessary. Further, nothing in this section shall require the
applicable Master Servicer to take or fail to take any action which, in
the applicable Master Servicer's good faith and reasonable judgment, may
(1) result in an Adverse REMIC Event or (2) subject the applicable Master
Servicer to material liability or materially expand the scope of the
Master Servicer's obligations under this Agreement.
(iv) Notwithstanding the applicable Master Servicer's right to make
determinations relating to claims against the applicable Master Servicer,
the Special Servicer shall (1) have the right at any time to direct the
applicable Master Servicer to settle any claims brought against the Trust,
including claims asserted against the applicable Master Servicer (whether
or not the Trust or the Special Servicer is named in any such claims or
Trust-Related Litigation) and (2) otherwise direct the actions of the
applicable Master Servicer relating to claims against the applicable
Master Servicer (whether or not the Trust or the Special Servicer is named
in any such claims or Trust-Related Litigation), provided in either case
that such settlement or other direction does not require any admission of
liability or wrongdoing on the part of the Master Servicer, the cost of
such settlement is paid by the Trust, and the applicable Master Servicer
is indemnified pursuant to Section 6.03 hereof for all costs and expenses
of the applicable Master Servicer incurred in defending and settling the
Trust Related Litigation.
(v) In the event both the applicable Master Servicer and the Special
Servicer or Trust are named in litigation, the applicable Master Servicer
and the Special Servicer shall cooperate with each other to afford the
applicable Master Servicer and the Special Servicer the rights afforded to
such party in this Section 3.34.
(vi) This Section 3.34(a) shall not apply in the event the Special
Servicer authorizes the applicable Master Servicer, and the applicable
Master Servicer agrees (both authority and agreement to be in writing), to
make certain decisions or control certain litigation on behalf of the
Trust.
(b) Notwithstanding the foregoing, (i) in the event that any action,
suit, litigation or proceeding names the Trustee in its individual capacity, or
in the event that any judgment is rendered against the Trustee in its individual
capacity, the Trustee, upon prior written notice to the applicable Master
Servicer or the Special Servicer, as applicable, may retain counsel and appear
in any such proceeding on its own behalf in order to protect and represent its
interests (but not to otherwise direct, manage or prosecute such litigation or
claim), (ii) in the event of any action, suit, litigation or proceeding, other
than an action, suit, litigation or proceeding relating to the enforcement of
the obligations of a Mortgagor under the related Mortgage Loan documents or
Mortgaged Property, neither the applicable Master Servicer nor the Special
Servicer shall, without the prior written consent of the Trustee, (A) initiate
any action, suit, litigation or proceeding in the name of the Trustee, whether
in such capacity or individually, (B) engage counsel to represent the Trustee,
or (C) prepare, execute or deliver any government filings, forms, permits,
registrations or other documents or take any other similar action with the
intent to cause, and that actually causes, the Trustee to be registered to do
business in any state, and (iii) in the event that any court finds that the
Trustee is a necessary party in respect of any action, suit, litigation or
proceeding relating to or arising from this Agreement, the Trustee shall have
the right to retain counsel and appear in any such proceeding on its own behalf
in order to protect and represent its interest (but not to otherwise direct,
manage or prosecute such litigation or claim).
[End of Article III]
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions. (a) On each Distribution Date, to the
extent of the Available Distribution Amount for such Distribution Date, the
Paying Agent shall be deemed to transfer the Lower-Tier Distribution Amount from
the Lower-Tier Distribution Account to the Upper-Tier Distribution Account in
the amounts and priorities set forth in Section 4.01(b) with respect to each
Class of Uncertificated Lower-Tier Interests, and immediately thereafter, shall
make distributions thereof from the Upper-Tier Distribution Account in the
following order of priority, satisfying in full, to the extent required and
possible, each priority before making any distribution with respect to any
succeeding priority:
(i) first, concurrently (A) to the Holders of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the
Class A-4 Certificates and the Class A-SB Certificates, pro rata (based
upon their respective entitlements to interest for such Distribution
Date), in respect of interest, from the Loan Group 1 Available
Distribution Amount and up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Classes of Certificates for such
Distribution Date; (B) to the Holders of the Class A-1A Certificates, in
respect of interest, from the Loan Group 2 Available Distribution Amount
and up to an amount equal to the aggregate Interest Distribution Amount in
respect of such Class of Certificates for such Distribution Date and (C)
to the Holders of the Class X Certificates, in respect of interest, up to
an amount equal to the Interest Distribution Amount payable in respect of
such Class of Certificates for such Distribution Date; provided, however,
that if the Loan Group 1 Available Distribution Amount and/or the Loan
Group 2 Available Distribution Amount is insufficient to pay in full the
Interest Distribution Amount provided above, payable in respect of any
Class A Certificates or Class X Certificates on such Distribution Date,
then the entire Available Distribution Amount shall be applied to make
distributions of interest to the Holders of the respective Classes of the
Class A Certificates and the Class X Certificates, up to an amount equal
to, and pro rata as among such Classes in accordance with, the Interest
Distribution Amount in respect of each such Class of Certificates for such
Distribution Date;
(ii) second, to the Holders of the Class A-1 Certificates, the Class
A-2 Certificates, the Class A-3 Certificates, the Class A-4 Certificates,
the Class A-SB Certificates and the Class A-1A Certificates in reduction
of the Certificate Balances thereof, concurrently: (A)(1) first, to the
Holders of the Class A-SB Certificates, in an amount up to the Loan Group
1 Principal Distribution Amount and, after the outstanding Certificate
Balance of the Class A-1A Certificates has been reduced to zero, the Loan
Group 2 Principal Distribution Amount for such Distribution Date remaining
after the payments specified in clause (B) below have been made on such
Distribution Date, until the outstanding Certificate Balance of the Class
A-SB Certificates has been reduced to the Class A-SB Planned Principal
Balance; (2) second, to the Holders of the Class A-1 Certificates, in an
amount up to the Loan Group 1 Principal Distribution Amount and, after the
outstanding Certificate Balance of the Class A-1A Certificates has been
reduced to zero, the Loan Group 2 Principal Distribution Amount for such
Distribution Date, in each case, to the extent remaining after the
payments specified in clause (A)(1) above and clause (B) below have been
made on such Distribution Date, until the outstanding Certificate Balance
of the Class A-1 Certificates has been reduced to zero; (3) third, to the
Holders of the Class A-2 Certificates, in an amount up to the Loan Group 1
Principal Distribution Amount and, after the outstanding Certificate
Balance of the Class A-1A Certificates has been reduced to zero, the Loan
Group 2 Principal Distribution Amount, in each case, to the extent
remaining after the payments specified in clauses (A)(1) and (2) above and
clause (B) below have been made on such Distribution Date, until the
outstanding Certificate Balance of the Class A-2 Certificates has been
reduced to zero; (4) fourth, to the Holders of the Class A-3 Certificates,
in an amount up to the Loan Group 1 Principal Distribution Amount and,
after the outstanding Certificate Balance of the Class A-1A Certificates
has been reduced to zero, the Loan Group 2 Principal Distribution Amount,
in each case, to the extent remaining after the payments specified in
clauses (A)(1), (2) and (3) above and clause (B) below have been made on
such Distribution Date, until the outstanding Certificate Balance of the
Class A-3 Certificates has been reduced to zero; (5) fifth, to the Holders
of the Class A-4 Certificates, in an amount up to the Loan Group 1
Principal Distribution Amount and, after the outstanding Certificate
Balance of the Class A-1A Certificates has been reduced to zero, the Loan
Group 2 Distribution Amount, in each case, to the extent remaining after
the payments specified in clauses (A)(1), (2), (3) and (4) and clause (B)
below have been made, until the outstanding Certificate Balance of the
Class A-4 Certificates has been reduced to zero; and (6) sixth, to the
Holders of the Class A-SB Certificates, in an amount up to the Loan Group
1 Principal Distribution Amount and, after the outstanding Certificate
Balance of the Class A-1A Certificates has been reduced to zero, the Loan
Group 2 Principal Distribution Amount, in each case, to the extent
remaining after payments as specified in clauses (A)(1), (2), (3), (4) and
(5) above and clause (B) below have been made on such Distribution Date,
until the outstanding Certificate Balance of the Class A-SB Certificates
has been reduced to zero and (B) to the Holders of the Class A-1A
Certificates, in an amount up to the Loan Group 2 Principal Distribution
Amount and, after the Certificate Balances of the Class A-4 and Class A-SB
Certificates have been reduced to zero, the Loan Group 1 Principal
Distribution Amount remaining after payments specified in clauses (A)(1),
(2), (3), (4), (5) and (6) above have been made on such Distribution Date,
until the Certificate Balance of the Class A-1A Certificates has been
reduced to zero;
(iii) third, to the Holders of the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-4 Certificates, Class A-SB
Certificates and Class A-1A Certificates, pro rata (based upon the
aggregate unreimbursed Collateral Support Deficit allocated to each such
Class), until all amounts of Collateral Support Deficit previously
allocated to such Classes, but not previously reimbursed, have been
reimbursed in full;
(iv) fourth, to the Holders of the Class A-M Certificates in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(v) fifth, after the Certificate Balances of the Class A
Certificates have been reduced to zero, to the Holders of the Class A-M
Certificates in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates
on such Distribution Date), until the outstanding Certificate Balance of
the Class A-M Certificates has been reduced to zero;
(vi) sixth, to the Holders of the Class A-M Certificates until all
amounts of Collateral Support Deficit previously allocated to the Class
A-M Certificates, but not previously reimbursed, have been reimbursed in
full;
(vii) seventh, to the Holders of Class A-J Certificates, in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(viii) eighth, after the Certificate Balances of the Class A
Certificates and Class A-M Certificates have been reduced to zero, to the
Holders of the Class A-J Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates and the Class A-M Certificates on such Distribution
Date), until the outstanding Certificate Balance of the Class A-J
Certificates has been reduced to zero;
(ix) ninth, to the Holders of the Class A-J Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class
A-J Certificates but not previously reimbursed, have been reimbursed in
full;
(x) tenth, to the Holders of the Class B Certificates, in respect of
interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(xi) eleventh, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates and Class A-J Certificates have been
reduced to zero, to the Holders of the Class B Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-M
Certificates and Class A-J Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class B Certificates has been
reduced to zero;
(xii) twelfth, to the Holders of the Class B Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class B
Certificates, but not previously reimbursed, have been reimbursed in full;
(xiii) thirteenth, to the Holders of the Class C Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xiv) fourteenth, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates and Class B
Certificates have been reduced to zero, to the Holders of the Class C
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates,
Class A-M Certificates, the Class A-J Certificates and Class B
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class C Certificates has been reduced to zero;
(xv) fifteenth, to the Holders of the Class C Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class C Certificates, but not previously reimbursed, have been reimbursed
in full;
(xvi) sixteenth, to the Holders of the Class D Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xvii) seventeenth, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates and Class C Certificates have been reduced to zero, to the
Holders of the Class D Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates, Class A-M Certificates, Class A-J Certificates,
Class B Certificates and Class C Certificates on such Distribution Date),
until the outstanding Certificate Balance of the Class D Certificates has
been reduced to zero;
(xviii) eighteenth, to the Holders of the Class D Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class D Certificates, but not previously reimbursed, have been
reimbursed in full;
(xix) nineteenth, to the Holders of the Class E Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xx) twentieth, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates and Class D Certificates have been
reduced to zero, to the Holders of the Class E Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates and Class D Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class E Certificates has been
reduced to zero;
(xxi) twenty-first, to the Holders of the Class E Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class E Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxii) twenty-second, to the Holders of the Class F Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxiii) twenty-third, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates and Class E
Certificates have been reduced to zero, to the Holders of the Class F
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates,
Class A-M Certificates, Class A-J Certificates, Class B Certificates,
Class C Certificates, Class D Certificates and Class E Certificates on
such Distribution Date), until the outstanding Certificate Balance of the
Class F Certificates has been reduced to zero;
(xxiv) twenty-fourth, to the Holders of the Class F Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class F Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxv) twenty-fifth, to the Holders of the Class G Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxvi) twenty-sixth, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates and Class F Certificates have been reduced to zero, to the
Holders of the Class G Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates, Class A-M Certificates, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates and Class F Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class G Certificates has been
reduced to zero;
(xxvii) twenty-seventh, to the Holders of the Class G Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class G Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxviii) twenty-eighth, to the Holders of the Class H Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxix) twenty-ninth, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates and Class G Certificates have been
reduced to zero, to the Holders of the Class H Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates and Class G Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class H Certificates has been
reduced to zero;
(xxx) thirtieth, to the Holders of the Class H Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class H Certificates, but not previously reimbursed, have been reimbursed
in full;
(xxxi) thirty-first, to the Holders of the Class J Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxii) thirty-second, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates and Class H
Certificates have been reduced to zero, to the Holders of the Class J
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates,
Class A-M Certificates, Class A-J Certificates, Class B Certificates,
Class C Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates and Class H Certificates on such
Distribution Date), until the outstanding Certificate Balance of the Class
J Certificates has been reduced to zero;
(xxxiii) thirty-third, to the Holders of the Class J Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class J Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxiv) thirty-fourth, to the Holders of the Class K Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxv) thirty-fifth, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates and Class J Certificates have been reduced to zero, to the
Holders of the Class K Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates, Class A-M Certificates, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates and Class J Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class K Certificates has been
reduced to zero;
(xxxvi) thirty-sixth, to the Holders of the Class K Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class K Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxvii) thirty-seventh, to the Holders of the Class L Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxviii) thirty-eighth, after the Certificate Balances of the Class
A Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates and Class K Certificates have been
reduced to zero, to the Holders of the Class L Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates and Class K Certificates a on such Distribution Date), until
the outstanding Certificate Balance of the Class L Certificates has been
reduced to zero;
(xxxix) thirty ninth, to the Holders of the Class L Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class L Certificates, but not previously reimbursed, have been
reimbursed in full;
(xl) fortieth, to the Holders of the Class M Certificates in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(xli) forty-first, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates and Class L
Certificates have been reduced to zero, to the Holders of the Class M
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates,
Class A-M Certificates, Class A-J Certificates, Class B Certificates,
Class C Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates and Class L Certificates on such
Distribution Date), until the outstanding Certificate Balance of the Class
M Certificates has been reduced to zero;
(xlii) forty-second, to the Holders of the Class M Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class M Certificates, but not previously reimbursed, have been
reimbursed in full;
(xliii) forty-third, to the Holders of the Class N Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xliv) forty-fourth, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates and Class M Certificates have been reduced to zero, to the
Holders of the Class N Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates, Class A-M Certificates, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates and Class M Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class N Certificates has been
reduced to zero;
(xlv) forty-fifth, to the Holders of the Class N Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class N Certificates, but not previously reimbursed, have been reimbursed
in full;
(xlvi) forty-sixth, to the Holders of the Class P Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xlvii) forty-seventh, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates and Class N Certificates have been
reduced to zero, to the Holders of the Class P Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M
Certificates and Class N Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class P Certificates has been
reduced to zero;
(xlviii) forty-eighth, to the Holders of the Class P Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class P Certificates, but not previously reimbursed, have been
reimbursed in full;
(xlix) forty-ninth, to the Holders of the Class Q Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(l) fiftieth, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates, Class N Certificates and Class P
Certificates have been reduced to zero, to the Holders of the Class Q
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates,
Class A-M Certificates, Class A-J Certificates, Class B Certificates,
Class C Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M
Certificates, Class N Certificates and Class P Certificates on such
Distribution Date), until the outstanding Certificate Balance of the Class
Q Certificates has been reduced to zero;
(li) fifty-first, to the Holders of the Class Q Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class Q Certificates, but not previously reimbursed, have been reimbursed
in full;
(lii) fifty-second, to the Holders of the Class NR Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(liii) fifty-third, after the 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, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates, Class N Certificates, Class P
Certificates and Class Q Certificates have been reduced to zero, to the
Holders of the Class NR Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates, Class A-M Certificates, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates, Class N Certificates, Class P
Certificates and Class Q Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class NR Certificates has been
reduced to zero;
(liv) fifty-fourth, 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
(lv) fifty-fifth, to the Holders of the Class R Certificates, the
amount, if any, of the Available Distribution Amount remaining in the
Upper-Tier Distribution Account with respect to such Distribution Date.
If, in connection with any Distribution Date, the Paying Agent has
reported the amount of an anticipated distribution to DTC based on the receipt
of payments as of the Determination Date and additional Monthly Payments,
balloon payments or unscheduled principal payments are subsequently received by
the Master Servicer and required to be part of the Available Distribution Amount
for such Distribution Date, the Master Servicer shall promptly notify the Paying
Agent and the Paying Agent will use commercially reasonable efforts to cause DTC
to make the revised distribution on a timely basis on such Distribution Date.
None of the Master Servicer, the Special Servicer or the Paying Agent shall be
liable or held responsible for any resulting delay in the making of such
distribution to Certificateholders solely on the basis of the actions described
in the preceding sentence.
(b) On each Distribution Date, each Uncertificated Lower-Tier
Interest shall be deemed to receive distributions in respect of principal or
reimbursement of Collateral Support Deficit Amount in an amount equal to the
amount of principal or reimbursement Collateral Support Deficit actually
distributable to its respect Related Certificates as provided in Sections
4.01(a), 4.01(c) and 4.01(d). On each Distribution Date, each Uncertificated
Lower-Tier Interest shall be deemed to receive distributions in respect of
interest in an amount equal to the Interest Distribution Amount in respect of
its Related Certificates 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 respective Components pro rata,
based on the interest accrued with respect thereto at its Class X Strip Rate.
Such amounts distributed to the Uncertificated Lower-Tier Interests in respect
of principal and interest with respect to any Distribution Date are referred to
herein collectively as the "Lower-Tier Distribution Amount," and shall be made
by the Paying Agent by deeming such Lower-Tier Distribution Amount to be
withdrawn from the Lower-Tier REMIC to be deposited in the Upper-Tier
Distribution Account.
As of any date, the principal balance of each Uncertificated
Lower-Tier Interest equals the Certificate Balance of the Related Certificates
with respect thereto, as adjusted for the allocation of Collateral Support
Deficits, as provided in Sections 4.04(b) and 4.04(c) and of Certificate
Deferred Interest as provided in Section 4.06. The initial principal balance of
each Uncertificated Lower-Tier Interest equals the respective Original
Lower-Tier Principal Amount. The pass-through rate with respect to each
Uncertificated Lower-Tier Interest will be the rate per annum set forth in the
Preliminary Statement hereto.
Any amount that remains in the Lower-Tier Distribution Account on
each Distribution Date after distribution of the Lower-Tier Distribution Amount
and distribution of Yield Maintenance Charges pursuant to Section 4.01(d)(iii)
shall be distributed to the Holders of the Class LR Certificates (but only to
the extent of the Available Distribution Amount for such Distribution Date
remaining in the Lower-Tier Distribution Account, if any).
(c) Notwithstanding the priorities set forth in clause (a) above, on
and after the Distribution Date on which the Certificate Balances of the
Subordinate Certificates have all been reduced to zero, the Principal
Distribution Amount will be distributed, pro rata, among the Class A-1, Class
A-1A, Class A-2, Class A-3, Class A-4 and Class A-SB Certificates without regard
to Loan Group, based on their respective Certificate Balances immediately prior
to such Distribution Date, in reduction of their respective Certificate
Balances, until the Certificate Balance of each such Class is reduced to zero,
and any amounts representing reimbursements of Collateral Support Deficits
previously allocated to such Classes, if available, will be distributed pro rata
based on their respective Certificate Balances, without regard to Loan Group.
(d) (i) On each Distribution Date, Yield Maintenance Charges
calculated by reference to a U.S. treasury rate collected during the related Due
Period will be distributed by the Paying Agent to the following Classes: to the
Class A-1 Certificates, Class A-1A Certificates, Class A-2 Certificates, Class
A-3 Certificates, Class A-4 Certificates, Class A-SB Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates, Class H Certificates and Class J Certificates with respect
to the related Loan Group (if applicable, in the case of the Class A-1, Class
A-1A, Class A-2, Class A-3, Class A-4, Class A-SB Certificates) on each
Distribution Date, in an amount equal to the product of (a) a fraction whose
numerator is the amount distributed as principal to such Class on such
Distribution Date, and whose denominator is the total amount distributed as
principal to the Class A-1 Certificates, Class A-2 Certificates, Class A-3
Certificates, Class A-4 Certificates, Class A-SB Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates, Class N Certificates,
Class P Certificates, Class Q Certificates and Class NR 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 calculated by reference to a U.S. treasury rate collected on
such principal prepayments during the related Due Period. If more than one such
Class of Certificates is entitled to distributions of principal with respect to
the related Loan Group on any particular Distribution Date on which Yield
Maintenance Charges are distributable, the aggregate amount of such Yield
Maintenance Charges will be allocated among all such Classes up to, and on a pro
rata basis in accordance with, their respective entitlements thereto in
accordance with this Section 4.01(d)(i). Any Yield Maintenance Charge collected
during the related Due Period remaining after such distributions will be
distributed to the holders of the Class X Certificates. Notwithstanding the
foregoing, any prepayment penalties collected that are based on a percentage of
the amount being prepaid will be distributed to the Class X Certificates.
(ii) No Yield Maintenance Charge will be distributed to the holders
of the Class K, Class L, Class M, Class N, Class P, Class Q, Class NR or
Residual Certificates. After the Certificate Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-SB Certificates, Class A-1A Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates and Class J
Certificates have been reduced to zero, 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 on each Distribution
Date pursuant to Section 4.01(d)(i) shall first be deemed to be
distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in respect
of the Uncertificated Lower-Tier Interests, pro rata based upon the amount
of principal distributed in respect of each such Class of Uncertificated
Lower-Tier Interests for such Distribution Date pursuant to Section
4.01(b) above.
(e) On each Distribution Date, the Paying Agent shall withdraw
amounts from the Gain-on-Sale Reserve Account (other than amounts with respect
to the 000 Xxxxxxxxx Xxxxxx Mortgage Loan and the AmeriCold Portfolio Mortgage
Loan) and shall distribute such amounts to reimburse the Holders of the Regular
Certificates (in order of distribution priority) (first deeming such amounts to
be distributed with respect to the Related Uncertificated Lower-Tier Interests)
up to an amount equal to all Collateral Support Deficits, if any, previously
deemed allocated to them and unreimbursed after application of the Available
Distribution Amount for such Distribution Date. Amounts paid from the
Gain-on-Sale Reserve Account will not reduce the Certificate Balances of the
Classes of Certificates receiving such distributions. On any Distribution Date,
amounts held in the Gain-on-Sale Reserve Account that exceed amounts reasonably
required (as jointly determined by the applicable Master Servicer and the
Directing Certificateholder) to offset future Collateral Support Deficits shall
be distributed to the Holders of the Class LR Certificates. Any amounts
remaining in the Gain-on-Sale Reserve Account after such distributions shall be
applied to offset future Collateral Support Deficits and related Collateral
Support Deficits and upon termination of the Trust Fund, any amounts remaining
in the Gain-on-Sale Reserve Account shall be distributed to the Class LR
Certificateholders.
(f) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Except as otherwise specifically provided in Sections 4.01(g),
4.01(h) and 9.01, all such distributions with respect to each Class on each
Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates), or otherwise by check mailed
to such Certificateholder at its address in the Certificate Registrar. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of Collateral Support Deficit previously allocated to such
Certificate) will be made in like manner, but only upon presentation and
surrender of such Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such final
distribution.
Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the Paying
Agent, the Certificate Registrar, the Depositor, the Master 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
Paying Agent expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any amount of Collateral Support Deficit previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Paying Agent
shall, no later than the related P&I Advance Determination Date, mail to each
Holder on such date of such Class of Certificates a notice to the effect that:
(i) the Paying Agent expects that the final distribution with
respect to such Class of Certificates will be made on such Distribution
Date but only upon presentation and surrender of such Certificates at the
offices of the Certificate Registrar or such other location therein
specified; and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Paying Agent, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Paying Agent as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(g).
(h) Distributions in reimbursement of Collateral Support Deficit
previously allocated to the Regular Certificates shall be made in the amounts
and manner specified in Section 4.01(a) or Section 4.01(e), as applicable, to
the Holders of the respective Class otherwise entitled to distributions of
interest and principal on such Class on the relevant Distribution Date; provided
that all distributions in reimbursement of Collateral Support Deficit previously
allocated to a Class of Certificates which has since been retired shall be to
the prior Holders that surrendered the Certificates of such Class upon
retirement thereof and shall be made by check mailed to the address of each such
prior Holder last shown in the Certificate Register. Notice of any such
distribution to a prior Holder shall be made in accordance with Section 12.05 at
such last address. The amount of the distribution to each such prior Holder
shall be based upon the aggregate Percentage Interest evidenced by the
Certificates surrendered thereby. If the check mailed to any such prior Holder
is returned uncashed, then the amount thereof shall be set aside and held
uninvested in trust for the benefit of such prior Holder, and the Paying Agent
shall attempt to contact such prior Holder in the manner contemplated by Section
4.01(g) as if such Holder had failed to surrender its Certificates.
(i) [Reserved].
(j) On the date as specified in the related Intercreditor Agreement,
with respect to the Companion Loans, the Companion Paying Agent shall make
withdrawals and payments from the Companion Distribution Account for each
Companion Loan in the following order of priority:
(i) to pay the Trustee or the Paying Agent or any of their
directors, officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person pursuant to Section 8.05, to
the extent any such amounts relate solely to the Loan Pair 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
Accounts related to such Companion Loan to the related Companion Holder,
in accordance with the related Intercreditor Agreement; and
(iv) to clear and terminate the Companion Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
All distributions from the Companion Distribution Account required
hereunder shall be made by the 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.
Section 4.02 Statements to Certificateholders; CMSA Investor
Reporting Package (IRP)s; Grant of Power of Attorney. (a) On each Distribution
Date, the Paying Agent shall make available to the general public a statement
(substantially in the form set forth as Exhibit G hereto and based on the
information supplied to the Paying Agent in the related CMSA Investor Reporting
Package (IRP) in accordance with CMSA guidelines) as to the distributions made
on such Distribution Date (each, a "Statement to Certificateholders") which
shall include:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates in reduction of the Certificate
Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates allocable to Distributable
Certificate Interest;
(iii) the aggregate amount of Advances made, with respect to the
pool of Mortgage Loans and with respect to each Loan Group, during the
period from but not including the previous Distribution Date to and
including such Distribution Date and details of P&I Advances as of the P&I
Advance Date;
(iv) the aggregate amount of compensation paid to the Trustee and
the Paying Agent and servicing compensation paid to the Master Servicers
and the Special Servicer with respect to the Due Period for such
Determination Date together with detailed calculations of servicing
compensation paid to 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 to 119 days (and for each 30 day period thereafter until
liquidation), (D) current but specially serviced or in foreclosure but not
REO Property and (E) for which the related Mortgagor is subject to
oversight by a bankruptcy court;
(viii) the value of any REO Property included in the Trust Fund as
of the end of the related Determination Date for such Distribution Date,
based on the most recent Appraisal or valuation;
(ix) the Available Distribution Amount for such Distribution Date;
(x) the Accrued Certificate Interest in respect of such Class of
Certificates for such Distribution Date, separately identifying any
Certificate Deferred Interest for such Distribution Date allocated to such
Class of Certificates;
(xi) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to Yield Maintenance
Charges;
(xii) the Pass-Through Rate for such Class of Certificates for such
Distribution Date and the next succeeding Distribution Date;
(xiii) the Scheduled Principal Distribution Amount and the
Unscheduled Principal Distribution Amount for such Distribution Date, with
respect to the pool of Mortgage Loans and with respect to each Loan Group;
(xiv) the Certificate Balance or Notional Amount, as the case may
be, of each Class of Certificates immediately before and immediately after
such Distribution Date, separately identifying any reduction therein as a
result of the allocation of any Collateral Support Deficit on such
Distribution Date and the aggregate amount of all reductions as a result
of allocations of Collateral Support Deficits to date;
(xv) the Certificate Factor for each Class of Regular Certificates
immediately following such Distribution Date;
(xvi) the amount of any Appraisal Reductions effected in connection
with such Distribution Date on a loan-by-loan basis and the total
Appraisal Reduction effected in connection with such Distribution Date,
together with a detailed worksheet showing the calculation of each
Appraisal Reduction on a current and cumulative basis;
(xvii) the number and related Stated Principal Balance of any
Mortgage Loans extended or modified since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date) on
a loan-by-loan basis;
(xviii) the amount of any remaining Class Unpaid Interest Shortfall
for such Class as of such Distribution Date;
(xix) a loan-by-loan listing of each Mortgage Loan which was the
subject of a Principal Prepayment since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date)
and the amount and the type of Principal Prepayment occurring;
(xx) a loan-by-loan listing of each Mortgage Loan which was defeased
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxi) all deposits into, withdrawals from, and the balance of the
Interest Reserve Account on the P&I Advance Date;
(xxii) in the case of the Residual Certificates, the amount of any
distributions on such Certificates pursuant to Sections 4.01(a), (b) and
(d);
(xxiii) the amount of the distribution on such Distribution Date to
the Holders of such Class of Certificates in reimbursement of previously
allocated Collateral Support Deficit;
(xxiv) the aggregate unpaid principal balance of the Mortgage Loans
outstanding as of the close of business on the related Determination Date,
with respect to the pool of Mortgage Loans and with respect to each Loan
Group;
(xxv) with respect to any Mortgage Loan as to which a Liquidation
Event occurred since the previous Determination Date (or in the case of
the first Distribution Date, as of the Cut-off Date) or prior to the
related Determination Date (other than a payment in full), (A) the loan
number thereof, (B) the aggregate of all Liquidation Proceeds and other
amounts received in connection with such Liquidation Event (separately
identifying the portion thereof allocable to distributions on the
Certificates), and (C) the amount of any Collateral Support Deficit in
connection with such Liquidation Event;
(xxvi) with respect to any REO Property included in the Trust Fund
as to which a Final Recovery Determination was made during the related Due
Period or prior to the Determination Date, (A) the loan number of the
related Mortgage Loan, (B) the aggregate of all Liquidation Proceeds and
other amounts received in connection with such Final Recovery
Determination (separately identifying the portion thereof allocable to
distributions on the Certificates), and (C) the amount of any Collateral
Support Deficit in respect of the related REO Loan in connection with such
Final Recovery Determination;
(xxvii) the aggregate amount of interest on P&I Advances paid to
each Master Servicer and the Trustee since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date),
with respect to the pool of Mortgage Loans and with respect to each Loan
Group;
(xxviii) the aggregate amount of interest on Servicing Advances paid
to each Master Servicer and the Trustee since the previous Determination
Date (or in the case of the first Distribution Date, as of the Cut-off
Date);
(xxix) the original and then current credit support levels for each
Class of Certificates;
(xxx) the original and then current ratings for each Class of
Regular Certificates;
(xxxi) the amount of the distribution on the Distribution Date to
the Holders of the Residual Certificates;
(xxxii) the aggregate amount of Yield Maintenance Charges collected
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxxiii) a loan-by-loan listing of any material modification,
extension or waiver of a Mortgage Loan; and
(xxxiv) 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), and (xi) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Definitive
Certificate.
Within a reasonable period of time after the end of each calendar
year, the Paying Agent shall furnish upon request to each Person who at any time
during the calendar year was a Holder of a Certificate, a statement containing
the information set forth in clauses (i), (ii) and (xi) above as to the
applicable Class, aggregated for such calendar year or applicable portion
thereof during which such person was a Certificateholder, together with such
other information as the Paying Agent deems necessary or desirable, or that a
Certificateholder or Certificate Owner reasonably requests, to enable
Certificateholders to prepare their tax returns for such calendar year. Such
obligation of the Paying Agent shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the Paying
Agent pursuant to any requirements of the Code as from time to time are in
force.
On each Distribution Date, the Paying Agent shall make available to
the general public via its website initially located at "xxx.xxxxxxxx.xxx" (i)
the related Statement to Certificateholders, (ii) the CMSA Loan Periodic Update
File, the CMSA Loan Setup File, the CMSA Bond Level File, the CMSA Collateral
Summary File, the CMSA Property File and (iii) as a convenience to the general
public (and not in furtherance of the distribution thereof under the securities
laws), the prospectus supplement, the prospectus, and this Agreement. In
addition, if the Depositor so directs the Paying Agent, and on terms acceptable
to the Paying Agent, the Paying Agent shall make certain other information and
reports related to the Mortgage Loans available through its internet website.
The Paying Agent shall make available to the Companion Holders all
reports via its internet website that the Paying Agent has made available to
Certificateholders under this Agreement.
In addition, on each Distribution Date, the Paying Agent shall make
available, to any Privileged Person via its website, each of the "surveillance
reports" identified as such in the definition of "CMSA Investor Reporting
Package" and the CMSA Operating Statement Analysis Report and CMSA NOI Adjusted
Worksheets and seven CMSA data files, the Realized Loss Report and CMSA Advance
Recovery Report to the extent delivered by the Master Servicer pursuant to this
Agreement and the Trustee's Exception Report as updated from time to time to the
extent delivered to the Paying Agent.
The Paying Agent makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on its internet website and assumes no responsibility therefor. In
addition, the Paying Agent may disclaim responsibility for any information
distributed by it for which it is not the original source.
In connection with providing access to the Paying Agent's internet
website, the Paying Agent may require registration and the acceptance of a
disclaimer. The Paying Agent shall not be liable for the dissemination of
information in accordance herewith. Questions regarding the Paying Agent's
internet website can be directed to (000) 000-0000.
Each of the Master Servicer and the Special Servicer may, at its
sole cost and expense, make available by electronic media, bulletin board
service or internet website (in addition to making information available as
provided herein) any reports or other information the Master Servicer or the
Special Servicer, as applicable, is required or permitted to provide to any
party to this Agreement, the Rating Agencies or any Certificateholder or
prospective Certificateholder (which may be a licensed or registered investment
advisor) to the extent such action does not conflict with the terms of this
Agreement, the terms of the Mortgage Loans or applicable law. Notwithstanding
this paragraph, the availability of such information or reports on the internet
or similar electronic media shall not be deemed to satisfy any specific delivery
requirements in this Agreement except as set forth herein. In connection with
providing access to 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
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 Paying Agent. Neither the Paying
Agent nor the Depositor shall have any obligation to recompute, verify or
recalculate the information provided thereto by such Master Servicer. Unless the
Paying Agent has actual knowledge that any report or file received from the
applicable Master Servicer contains erroneous information, the Paying Agent is
authorized to rely thereon in calculating and making distributions to
Certificateholders in accordance with Section 4.01, preparing the statements to
Certificateholders required by Section 4.02(a) and allocating Collateral Support
Deficit to the Certificates in accordance with Section 4.04.
Notwithstanding the foregoing, the failure of 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 Paying Agent shall provide the
requesting Certificateholder with such information that is in the Paying Agent's
possession or can reasonably be obtained by the Paying Agent as is requested by
such Certificateholder, for purposes of satisfying applicable reporting
requirements under Rule 144A under the Securities Act. Neither the Certificate
Registrar, the Paying Agent nor the Trustee shall have any responsibility for
the sufficiency under Rule 144A or any other securities laws of any available
information so furnished to any person including any prospective purchaser of a
Certificate or any interest therein, nor for the content or accuracy of any
information so furnished which was prepared or delivered to them by another.
(d) The information to which any Certificateholder is entitled is
limited to the information gathered and provided to the Certificateholder by the
parties hereto pursuant to this Agreement and by acceptance of any Certificate,
each Certificateholder agrees that except as specifically provided herein, no
Certificateholder shall contact any Mortgagor directly with respect to any
Mortgage Loan.
Section 4.03 P&I Advances. (a) On or before 4:00 p.m., New York City
time, on each P&I Advance Date, the applicable Master Servicer shall either (i)
remit to the Paying Agent for deposit into the Lower-Tier Distribution Account
from its own funds an amount equal to the aggregate amount of P&I Advances, if
any, to be made in respect of the related Distribution Date, (ii) apply amounts
held in 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 Paying Agent of (i) the aggregate amount of P&I
Advances for a Distribution Date and (ii) the amount of any Nonrecoverable P&I
Advances for such Distribution Date, on or before 2 Business Days prior to such
Distribution Date. If the Master Servicer fails to make a required P&I Advance
by 4:00 p.m., New York City time, on any P&I Advance Date, the Trustee shall
make such P&I Advance pursuant to Section 7.05 by noon, New York City time, on
the related Distribution Date, unless such Master Servicer shall have cured such
failure (and provided written notice of such cure to the Trustee and the Paying
Agent) by 11:00 a.m. on such Distribution Date. In the event that any Master
Servicer fails to make a required P&I Advance hereunder, the Paying Agent shall
notify the Trustee of such circumstances by 4:30 p.m. (New York City time) on
the related P&I Advance Date.
(b) Subject to Sections 4.03(c) and (e) below, the amount of P&I
Advances to be made by any Master Servicer with respect to any Distribution Date
and each Mortgage Loan shall be equal to: (i) the Monthly Payments (net of
related Servicing Fees, and in the case of the 000 Xxxxxxxxx Xxxxxx Mortgage
Loan and the AmeriCold Portfolio Mortgage Loan, the applicable servicing fees
payable under this Agreement) other than Balloon Payments, that were due during
the related Due Period and delinquent as of the close of business on the
Business Day preceding the related P&I Advance Date (or not advanced by any
Sub-Servicer on behalf of the applicable Master Servicer) and (ii) with respect
to each Mortgage Loan as to which the related Balloon Payment was due during or
prior to the related Due Period and was delinquent as of the end of the related
Due Period (including any REO Loan as to which the Balloon Payment would have
been past due), an amount equal to the Assumed Scheduled Payment therefor.
Subject to subsection (c) below, the obligation of 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, 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 applicable Master Servicer will be required to make
its determination that it has made a P&I Advance on such 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 such 000
Xxxxxxxxx Xxxxxx Mortgage Loan independently of any determination made by the
000 Xxxxxxxxx Xxxxxx Master Servicer or the 000 Xxxxxxxxx Xxxxxx Special
Servicer, as applicable, under the 0000-XXX00 Xxxxxxx Agreement in respect of
the related 000 Xxxxxxxxx Xxxxxx Companion Loans, and the 000 Xxxxxxxxx Xxxxxx
Master Servicer or the 000 Xxxxxxxxx Xxxxxx Special Servicer, as applicable,
shall make its own determination that it has made a P&I Advance that is a
Nonrecoverable Advance (as defined in the 0000-XXX00 Xxxxxxx Agreement) or that
any proposed P&I Advance, if made, would constitute a Nonrecoverable Advance (as
defined in the 0000-XXX00 Xxxxxxx Agreement) with respect to the 000 Xxxxxxxxx
Xxxxxx Companion Loans in accordance with the 0000-XXX00 Xxxxxxx Agreement. If
the applicable Master Servicer or Special Servicer determines that a proposed
P&I Advance with respect to a 000 Xxxxxxxxx Xxxxxx Mortgage Loan, if made, or
any outstanding P&I Advance with respect to a 000 Xxxxxxxxx Xxxxxx Mortgage Loan
previously made, would be, or is, as applicable, a Nonrecoverable Advance, the
Master Servicer shall provide the 000 Xxxxxxxxx Xxxxxx Master Servicer, written
notice of such determination within one Business Day of the date of such
determination. If the applicable Master Servicer receives written notice from
the 000 Xxxxxxxxx Xxxxxx Master Servicer or the 000 Xxxxxxxxx Xxxxxx Special
Servicer, as applicable, that it has determined, by making a determination of
non-recoverability under the 0000-XXX00 Xxxxxxx Agreement, with respect to the
000 Xxxxxxxxx Xxxxxx Companion Loans, that any proposed advance under the
0000-XXX00 Xxxxxxx Agreement that is similar to a P&I Advance would be, or any
outstanding advance under such 0000-XXX00 Xxxxxxx Agreement that is similar to a
P&I Advance is, a nonrecoverable advance, then the applicable Master Servicer or
the Trustee, may, based upon such determination by the 000 Xxxxxxxxx Xxxxxx
Master Servicer or the 000 Xxxxxxxxx Xxxxxx Special Servicer, as applicable,
determine that any P&I Advance previously made or proposed to be made with
respect to the related 000 Xxxxxxxxx Xxxxxx Mortgage Loan, will be a
Nonrecoverable P&I Advance, and thereafter shall not be required to make any
additional P&I Advances with respect to the related 000 Xxxxxxxxx Xxxxxx
Mortgage Loan unless and until the applicable Master Servicer or the Trustee, as
applicable, determines that any such additional P&I Advances with respect to the
related 000 Xxxxxxxxx Xxxxxx Mortgage Loan would not be a Nonrecoverable P&I
Advance, which determination may be as a result of consultation with the 000
Xxxxxxxxx Xxxxxx Master Servicer or the 000 Xxxxxxxxx Xxxxxx Special Servicer,
as applicable, or otherwise. For the avoidance of doubt, the applicable Master
Servicer or the Trustee, as applicable, shall have the sole discretion provided
in this Agreement to determine that any future P&I Advance or outstanding P&I
Advance would be, or is, as applicable, a Nonrecoverable Advance.
(d) With respect to each AmeriCold Portfolio Mortgage Loan, the
applicable Master Servicer will be required to make its determination that it
has made a P&I Advance on such AmeriCold Portfolio Mortgage Loan that is a
Nonrecoverable Advance or that any proposed P&I Advance would, if made,
constitute a Nonrecoverable Advance with respect to such AmeriCold Portfolio
Mortgage Loan independently of any determination made by the AmeriCold Portfolio
Master Servicer or the AmeriCold Portfolio Special Servicer, as applicable,
under the 2007-CIBC18 Pooling Agreement in respect of the related AmeriCold
Portfolio Companion Loans, and the AmeriCold Portfolio Master Servicer or the
AmeriCold Portfolio Special Servicer, as applicable, shall make its own
determination that it has made a P&I Advance that is a Nonrecoverable Advance
(as defined in the 2007-CIBC18 Pooling Agreement) or that any proposed P&I
Advance, if made, would constitute a Nonrecoverable Advance (as defined in the
2007-CIBC18 Pooling Agreement) with respect to the AmeriCold Portfolio Companion
Loans in accordance with the 2007-CIBC18 Pooling Agreement. If the applicable
Master Servicer or Special Servicer determines that a proposed P&I Advance with
respect to a AmeriCold Portfolio Mortgage Loan, if made, or any outstanding P&I
Advance with respect to a AmeriCold Portfolio Mortgage Loan previously made,
would be, or is, as applicable, a Nonrecoverable Advance, the applicable Master
Servicer shall provide the AmeriCold Portfolio Master Servicer, written notice
of such determination within one Business Day of the date of such determination.
If the applicable Master Servicer receives written notice from the AmeriCold
Portfolio Master Servicer or the AmeriCold Portfolio Special Servicer, as
applicable, that it has determined, by making a determination of
non-recoverability under the 2007-CIBC18 Pooling Agreement, with respect to the
AmeriCold Portfolio Companion Loans, that any proposed advance under the
2007-CIBC18 Pooling Agreement that is similar to a P&I Advance would be, or any
outstanding advance under such 2007-CIBC18 Pooling Agreement that is similar to
a P&I Advance is, a nonrecoverable advance, then the applicable Master Servicer
or the Trustee, may, based upon such determination by the AmeriCold Portfolio
Master Servicer or the AmeriCold Portfolio Special Servicer, as applicable,
determine that any P&I Advance previously made or proposed to be made with
respect to the related AmeriCold Portfolio Mortgage Loan, will be a
Nonrecoverable P&I Advance, and thereafter shall not be required to make any
additional P&I Advances with respect to the related AmeriCold Portfolio Mortgage
Loan unless and until the applicable Master Servicer or the Trustee, as
applicable, determines that any such additional P&I Advances with respect to the
related AmeriCold Portfolio Mortgage Loan would not be a Nonrecoverable P&I
Advance, which determination may be as a result of consultation with the
AmeriCold Portfolio Master Servicer or the AmeriCold Portfolio Special Servicer,
as applicable, or otherwise. For the avoidance of doubt, the applicable Master
Servicer or the Trustee, as applicable, shall have the sole discretion provided
in this Agreement to determine that any future P&I Advance or outstanding P&I
Advance would be, or is, as applicable, a Nonrecoverable Advance.
(e) 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 Trustee and itself (in that order
of priority) as the case may be 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 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 and/or the Trustee, as the case may be, for any outstanding P&I
Advance, subject to Section 3.19 of this Agreement, as soon as practicably
possible after funds available for such purpose are deposited in its Certificate
Account.
(f) Notwithstanding the foregoing, (i) neither the Master Servicers
nor the Trustee shall make an advance for Yield Maintenance Charges, Default
Interest or Penalty Charges and (ii) if an Appraisal Reduction has been made
with respect to any Mortgage Loan then in the event of subsequent delinquencies
thereon, the interest portion of the P&I Advance in respect of such Mortgage
Loan for the related Distribution Date shall be reduced (it being herein
acknowledged that there shall be no reduction in the principal portion of such
P&I Advance) to equal the product of (x) the amount of the interest portion of
such P&I Advance for such Mortgage Loan for such Distribution Date without
regard to this subsection (ii), and (y) a fraction, expressed as a percentage,
the numerator of which is equal to the Stated Principal Balance of such Mortgage
Loan immediately prior to such Distribution Date, net of the related Appraisal
Reduction, if any, and the denominator of which is equal to the Stated Principal
Balance of such Mortgage Loan immediately prior to such Distribution Date. For
purposes of the immediately preceding sentence, the Monthly Payment due on the
Maturity Date for a Balloon Mortgage Loan will be the Assumed Scheduled Payment
for the related Distribution Date.
(g) In no event shall either the Master Servicers or the Trustee be
required to make a P&I Advance with respect to any Companion Loan.
Section 4.04 Allocation of Collateral Support Deficit. (a) On each
Distribution Date, immediately following the distributions to be made on such
date pursuant to Section 4.01 and the allocation of Certificate Deferred
Interest pursuant to Section 4.06, the Paying Agent shall calculate the amount,
if any, by which (i) the aggregate Stated Principal Balance (for purposes of
this calculation only, not giving effect to any reductions of the Stated
Principal Balance for payments of principal collected on the Mortgage Loans that
were used to reimburse any Workout-Delayed Reimbursement Amounts pursuant to
Section 3.05(a)(v) to the extent such Workout-Delayed Reimbursement Amounts are
not otherwise determined to be Nonrecoverable Advances) of the Mortgage Loans
and any REO Loans, expected to be outstanding immediately following such
Distribution Date, is less than (ii) the then aggregate Certificate Balance of
the Regular Certificates 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
shall be made by reducing the Certificate Balance thereof by the amount so
allocated. Any Collateral Support Deficit allocated to a Class of Regular
Certificates 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 in respect of which any such reimbursement
is made. To the extent any Nonrecoverable Advances (plus interest thereon) that
were reimbursed from principal collections on the Mortgage Loans and previously
resulted in a reduction of the Principal Distribution Amount, Loan Group 1
Principal Distribution Amount or Loan Group 2 Principal Distribution Amount are
subsequently recovered on the related Mortgage Loan, the amount of such recovery
will be added to the Certificate Balance of the Class or Classes of Certificates
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. If the Certificate Balance of any Class
of Certificates is so increased, the amount of unreimbursed Collateral Support
Deficit of such Class of Certificates shall be decreased by such amount.
(b) On each Distribution Date, the Certificate Balances of the
Regular Certificates will be reduced without distribution, as a write-off to the
extent of any Collateral Support Deficit, if any, allocable to such Certificates
with respect to such Distribution Date. Any such write off shall be allocated
first, to the Class NR Certificates; second, to the Class Q Certificates, third,
to the Class P Certificates, fourth, to the Class N Certificates, fifth, to the
Class M Certificates, sixth, to the Class L Certificates, seventh, to the Class
K Certificates, eighth, to the Class J Certificates, ninth, to the Class H
Certificates, tenth, to the Class G Certificates, eleventh, to the Class F
Certificates, twelfth, to the Class E Certificates, thirteenth, to the Class D
Certificates, fourteenth, to the Class C Certificates, fifteenth, to the Class B
Certificates, sixteenth, to the Class A-J Certificates, seventeenth, to the
Class A-M Certificates, and eighteenth to the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-4 Certificates, Class A-SB
Certificates and Class A-1A Certificates, pro rata (based upon their respective
Certificate Balances and without regard to Loan Groups), until the remaining
Certificate Balances of such Classes of Certificates have been reduced to zero.
(c) With respect to any Distribution Date, any Collateral Support
Deficit allocated to a Class of Certificates (other than the Class X, Class R
and Class LR Certificates) pursuant to Section 4.04(a) or Section 4.04(b),
respectively, with respect to such Distribution Date shall reduce the Lower-Tier
Principal Amount of the Related Uncertificated Lower-Tier Interest with respect
thereto as a write-off.
Section 4.05 Appraisal Reductions. The aggregate Appraisal Reduction
will be allocated by the Paying Agent on each Distribution Date, only for
purposes of determining the amount of P&I Advances with respect to the related
Mortgage Loan, to the Certificate Balance of the Class NR, Class Q, Class P,
Class N, Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class E,
Class D, Class C, Class B, Class A-J and Class A-M Certificates, in that order,
up to the amount of their respective Certificate Balances. On any Distribution
Date, an Appraisal Reduction that otherwise would be allocated to a Class of
Certificates will be allocated to the next most subordinate Class to the extent
that the Certificate Balance on such Distribution Date for such Class of
Certificates (prior to taking the Appraisal Reduction into account) is less than
the Appraisal Reduction for such Distribution Date.
With respect to any AB Mortgage Loan, Appraisal Reductions will be
calculated based on the aggregate outstanding principal balance of such AB
Mortgage Loan and the related Companion Loan. Any resulting Appraisal Reductions
with respect to any AB Mortgage Loan will be allocated to the related Companion
Loan up to the principal amount of such Companion Loan prior to being allocated
to the AB Mortgage Loan.
Section 4.06 Certificate Deferred Interest. (a) On each Distribution
Date, the amount of interest distributable to a Class of Regular Certificates
(other than the Class X Certificates) 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 such
Mortgage Deferred Interest to be allocated first, to the Class NR Certificates,
second, to the Class Q Certificates, third, to the Class P Certificates, fourth,
to the Class N Certificates, fifth, to the Class M Certificates, sixth, to the
Class L Certificates, seventh, to the Class K Certificates, eighth, to the Class
J Certificates, ninth, to the Class H Certificates, tenth, to the Class G
Certificates, eleventh, to the Class F Certificates, twelfth, to the Class E
Certificates, thirteenth, to the Class D Certificates, fourteenth, to the Class
C Certificates, fifteenth, to the Class B Certificates, sixteenth, to the Class
A-J Certificates, seventeenth, to the Class A-M Certificates and then pro rata
(based upon Accrued Certificate Interest) to the Class A-1, Class A-2, Class
A-1A, Class A-3, Class A-4 and Class A-SB Certificates, in each case up to the
respective Accrued Certificate Interest for each such Class of Certificates for
such Distribution Date.
(b) On each Distribution Date, the Certificate Balances of the Class
A-1 Certificates, Class A-1A Certificates, Class A-2 Certificates, Class A-3
Certificates, Class A-4 Certificates, Class A-SB Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates, Class N Certificates,
Class P Certificates, Class Q Certificates and Class NR Certificates shall be
increased by the amount of the Certificate Deferred Interest allocated to such
Class of Certificates 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 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 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.
[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-26. The Certificates will be issuable in registered form only;
provided, however, that in accordance with Section 5.03 beneficial ownership
interests in the Regular Certificates shall initially be held and transferred
through the book-entry facilities of the Depository. The Class R and Class LR
Certificates will each be issuable in one or more registered, definitive
physical certificates (each, a "Definitive Certificate") substantially in the
form of Certificates of each Class and with such applicable legends as are set
forth in the Exhibits hereto corresponding to such Class. Each Certificate will
share ratably in all rights of the related Class. The Class X Certificates will
be issuable only in minimum Denominations of authorized initial Notional Amount
of not less than $1,000,000 and in integral multiples of $1.00 in excess
thereof. The Offered Certificates (other than the Class X 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 Residual Certificates) will be
issuable in minimum Denominations of authorized initial Certificate Balance of
not less than $25,000, and in integral multiples of $1.00 in excess thereof. If
the Original Certificate Balance or initial Notional Amount, as applicable, of
any Class does not equal an integral multiple of $1.00, then a single additional
Certificate of such Class may be issued in a minimum denomination of authorized
initial Certificate Balance or initial Notional Amount, as applicable, that
includes the excess of (i) the Original Certificate Balance or initial Notional
Amount, as applicable, of such Class over (ii) the largest integral multiple of
$1.00 that does not exceed such amount. The Class R and Class LR Certificates
will be issuable only in one or more Definitive Certificates in denominations
representing Percentage Interests of not less than 20%. With respect to any
Certificate or any beneficial interest in a Certificate, the "Denomination"
thereof shall be (i) the amount (a) set forth on the face thereof or, (b) set
forth on a schedule attached thereto or (c) in the case of any beneficial
interest in a Book-Entry Certificate, the interest of the related Certificate
Owner in the applicable Class of Certificates as reflected on the books and
records of the Depository or related Participants, as applicable, (ii) expressed
in terms of initial Certificate Balance or initial Notional Amount, as
applicable, and (iii) be in an authorized denomination, as set forth above. The
Book-Entry Certificates will be issued as one or more certificates registered in
the name of a nominee designated by the Depository, and Certificate Owners will
hold interests in the Book-Entry Certificates through the book-entry facilities
of the Depository in the minimum Denominations and aggregate Denominations as
set forth in the above. No Certificate Owner of a Book-Entry Certificate of any
Class thereof will be entitled to receive a Definitive Certificate representing
its interest in such Class, except as provided in Section 5.03 herein. Unless
and until Definitive Certificates are issued in respect of a Class of Book-Entry
Certificates, beneficial ownership interests in such Class of Certificates will
be maintained and transferred on the book-entry records of the Depository and
Depository Participants, and all references to actions by Holders of such Class
of Certificates will refer to action taken by the Depository upon instructions
received from the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures and,
except as otherwise set forth herein, all references herein to payments,
notices, reports and statements to Holders of such Class of Certificates will
refer to payments, notices, reports and statements to the Depository or its
nominee as the registered Holder thereof, for distribution to the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures.
(a) The Certificates shall be executed by manual or facsimile
signature on behalf of the Certificate Registrar by an authorized signatory.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the authorized signatories of the Certificate Registrar shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. LaSalle
Bank National Association 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 LaSalle Bank National Association is removed as Paying Agent, then
LaSalle Bank National Association 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) LaSalle Bank National Association maintains an office and
conducts certificate transfer services at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and Trust Services,
JPMorgan 2007-CIBC19.
(c) Any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or with
rules or regulations pursuant thereto, or with the rules of any securities
market in which the Certificates are admitted to trading, or to conform to
general usage.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be maintained at
the office of the Certificate Registrar a Certificate Register in which, subject
to such reasonable regulations as the Certificate Registrar may prescribe, the
Certificate Registrar shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. LaSalle Bank
National Association is hereby initially appointed Certificate Registrar for the
purpose of registering Certificates and transfers and exchanges of Certificates
as herein provided. The Certificate Registrar may appoint, by a written
instrument delivered to the Depositor, the Trustee, the Paying Agent, the
Special Servicer and the Master 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 Paying Agent, the Trustee, the Special
Servicer and any agent of any of them shall not be affected by any notice or
knowledge to the contrary. A Definitive Certificate is transferable or
exchangeable only upon the surrender of such Certificate to the Certificate
Registrar at its office maintained at LaSalle Bank National Association, 000
Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global
Securities and Trust Services, JPMorgan 2007-CIBC19 (the "Registrar Office")
together with an assignment and transfer (executed by the Holder or his duly
authorized attorney). Subject to the requirements of Sections 5.02(b), (c) and
(d), the Certificate Registrar shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination as
the Definitive Certificate being surrendered. Such Certificates shall be
delivered by the Certificate Registrar in accordance with Section 5.02(e). Each
Certificate surrendered for registration of transfer shall be canceled, and the
Certificate Registrar shall hold such canceled Certificates in accordance with
its standard procedures.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does not
require such registration or qualification. If a transfer (other than one by the
Depositor to an Affiliate thereof or by the Initial Purchaser to CRES Investment
NO. I, LP) is to be made in reliance upon an exemption from the Securities Act,
and under the applicable state securities laws, then either:
(i) Rule 144A Book-Entry Certificate to Regulation S Book-Entry
Certificate During the Restricted Period. If, during the Restricted
Period, a Certificate Owner of an interest in a Rule 144A Book-Entry
Certificate wishes at any time to transfer its beneficial interest in such
Rule 144A Book-Entry Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such Certificate Owner may, in addition to complying with all
applicable rules and procedures of the Depository and Clearstream or
Euroclear applicable to transfers by their respective participants (the
"Applicable Procedures"), transfer or cause the transfer of such
beneficial interest for an equivalent beneficial interest in the
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(i). Upon receipt by the Certificate
Registrar at its Registrar Office of (1) written instructions given in
accordance with the Applicable Procedures from a Depository Participant
directing the Certificate Registrar to credit or cause to be credited to
another specified Depository Participant's account a beneficial interest
in the Regulation S Book-Entry Certificate in an amount equal to the
Denomination of the beneficial interest in the Rule 144A Book-Entry
Certificate to be transferred, (2) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Depository Participant (and the Euroclear or Clearstream
account, as the case may be) to be credited with, and the account of the
Depository Participant to be debited for, such beneficial interest, and
(3) a certificate in the form of Exhibit K hereto given by the Certificate
Owner that is transferring such interest, the Certificate Registrar, as
custodian of the Book-Entry Certificates shall reduce the Denomination of
the Rule 144A Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred, and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the Rule
144A Book-Entry Certificate was reduced upon such transfer.
(ii) Rule 144A Book-Entry Certificate to Regulation S Book-Entry
Certificate After the Restricted Period. If, after the Restricted Period,
a Certificate Owner of an interest in a Rule 144A Book-Entry Certificate
wishes at any time to transfer its beneficial interest in such Rule 144A
Book-Entry Certificate to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such holder may, in addition to complying with all Applicable
Procedures, transfer or cause the transfer of such beneficial interest for
an equivalent beneficial interest in a Regulation S Book-Entry Certificate
only upon compliance with the provisions of this Section 5.02(b)(ii). Upon
receipt by the Certificate Registrar at its Registrar Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in the Regulation S Book-Entry
Certificate in an amount equal to the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be transferred, (2) a
written order given in accordance with the Applicable Procedures
containing information regarding the account of the Depository Participant
(and, in the case of a transfer pursuant to and in accordance with
Regulation S, the Euroclear or Clearstream account, as the case may be) to
be credited with, and the account of the Depository Participant to be
debited for, such beneficial interest, and (3) a certificate in the form
of Exhibit N hereto given by the Certificate Owner that is transferring
such interest, the Certificate Registrar as custodian of the Book-Entry
Certificates shall reduce the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the aggregate Denomination of the
beneficial interest in the Rule 144A Book-Entry Certificate to be so
transferred, and credit or cause to be credited to the account of the
Person specified in such instructions (who shall be a Depository
Participant acting for or on behalf of Euroclear or Clearstream, or both,
as the case may be) a beneficial interest in the Regulation S Book-Entry
Certificate having a Denomination equal to the amount by which the
Denomination of the Rule 144A Book-Entry Certificate was reduced upon such
transfer.
(iii) Regulation S Book-Entry Certificate to Rule 144A Book-Entry
Certificate. If the Certificate Owner of an interest in a Regulation S
Book-Entry Certificate wishes at any time to transfer its beneficial
interest in such Regulation S Book-Entry Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial interest in
the Rule 144A Book-Entry Certificate, such holder may, in addition to
complying with all Applicable Procedures, transfer or cause the transfer
of such beneficial interest for an equivalent beneficial interest in the
Rule 144A Book-Entry Certificate only upon compliance with the provisions
of this Section 5.2(b)(iii). Upon receipt by the Certificate Registrar at
its Registrar Office of (1) written instructions given in accordance with
the Applicable Procedures from a Depository Participant directing the
Certificate Registrar to credit or cause to be credited to another
specified Depository Participant's account a beneficial interest in the
Rule 144A Book-Entry Certificate in an amount equal to the Denomination of
the beneficial interest in the Regulation S Book-Entry Certificate to be
transferred, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Depository
Participant to be credited with, and the account of the Depository
Participant (or, if such account is held for Euroclear or Clearstream, the
Euroclear or Clearstream account, as the case may be) to be debited for
such beneficial interest, and (3) with respect to a transfer of a
beneficial interest in the Regulation S Book-Entry Certificate for a
beneficial interest in the related Rule 144A Book-Entry Certificate (i)
during the Restricted Period, a certificate in the form of Exhibit O
hereto given by the Certificate Owner, or (ii) after the Restricted
Period, an Investment Representation Letter in the form of Exhibit C
attached hereto from the transferee to the effect that such transferee is
a Qualified Institutional Buyer (an "Investment Representation Letter"),
the Certificate Registrar, as custodian of the Book-Entry Certificates,
shall reduce the Denomination of the Regulation S Book-Entry Certificate
by the Denomination of the beneficial interest in the Regulation S
Book-Entry Certificate to be transferred, and, concurrently with such
reduction, increase the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Regulation S Book-Entry Certificate to be so transferred, and credit
or cause to be credited to the account of the Person specified in such
instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Rule 144A Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the
Regulation S Book-Entry Certificate was reduced upon such transfer.
(iv) Transfers Within Regulation S Book-Entry Certificates During
Restricted Period. If, during the Restricted Period, the Certificate Owner
of an interest in a Regulation S Book-Entry Certificate wishes at any time
to transfer its beneficial interest in such Certificate to a Person who
wishes to take delivery thereof in the form of a Regulation S Book-Entry
Certificate, such Certificate Owner may transfer or cause the transfer of
such beneficial interest for an equivalent beneficial interest in such
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(iv) and all Applicable Procedures. Upon
receipt by the Certificate Registrar at its Registrar Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in such Regulation S
Book-Entry Certificate in an amount equal to the Denomination of the
beneficial interest to be transferred, (2) a written order given in
accordance with the Applicable Procedures containing information regarding
the account of the Depository Participant to be credited with, and the
account of the Depository Participant (or, if such account is held for
Euroclear or Clearstream, the Euroclear or Clearstream account, as the
case may be) to be debited for, such beneficial interest and (3) a
certificate in the form of Exhibit P hereto given by the transferee, the
Certificate Registrar, as custodian of the Book-Entry Certificates, shall
debit the account of the transferring Regulation S Certificateholder and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount specified in such instructions by which
the account to be debited was reduced upon such transfer.
(v) Transfers of Book-Entry Certificates to Definitive Certificates.
Any and all transfers from a Book-Entry Certificate to a transferee
wishing to take delivery in the form of a Definitive Certificate will
require the transferee to take delivery subject to the restrictions on the
transfer of such Definitive Certificate described on the face of such
Certificate, and such transferee agrees that it will transfer such
Definitive Certificate only as provided therein and herein. No such
transfer shall be made and the Certificate Registrar shall not register
any such transfer unless such transfer is made in accordance with this
Section 5.02(b)(v).
(A) Transfers of a beneficial interest in a Book-Entry
Certificate to an Institutional Accredited Investor will require
delivery of such Certificate to the transferee in the form of a
Definitive Certificate and the Certificate Registrar shall register
such transfer only if prior to the transfer (i) two years have
expired after the later of the Closing Date or the last date on
which the Depositor or any Affiliate thereof held such Certificate,
or (ii) such transferee furnishes to the Certificate Registrar (1)
an Investment Representation Letter in the form of Exhibit C
attached hereto to the effect that the transfer is being made to an
Institutional Accredited Investor in accordance with an applicable
exemption under the Act, and (2) if required by the Certificate
Registrar, an opinion of counsel acceptable to the Certificate
Registrar that such transfer is in compliance with the Act.
(B) Transfers of a beneficial interest in a Book-Entry
Certificate to a Regulation S Investor wishing to take delivery in
the form of a Definitive Certificate will be registered by the
Certificate Registrar only if the transferor has provided the
Certificate Registrar with a certificate in the form of Exhibit P
attached hereto. Transfers of a beneficial interest in a Book-Entry
Certificate to a Qualified Institutional Buyer wishing to take
delivery in the form of a Definitive Certificate will be registered
by the Certificate Registrar only if such transferee furnishes to
the Certificate Registrar an Investment Representation Letter in the
form of Exhibit C attached hereto to the effect that the transfer is
being made to a Qualified Institutional Buyer in accordance with
Rule 144A under the Act.
(C) Notwithstanding the foregoing, no transfer of a beneficial
interest in a Regulation S Book-Entry Certificate to a Definitive
Certificate pursuant to subparagraph (B) above shall be made prior
to the expiration of the Restricted Period. Upon acceptance for
exchange or transfer of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate, as provided herein, the
Certificate Registrar shall endorse on the schedule affixed to the
related Book-Entry Certificate (or on a continuation of such
schedule affixed to such Book-Entry Certificate and made a part
thereof) an appropriate notation evidencing the date of such
exchange or transfer and a decrease in the Denomination of such
Book-Entry Certificate equal to the Denomination of such Definitive
Certificate issued in exchange therefor or upon transfer thereof.
(vi) Transfers of Definitive Certificates to the Book-Entry
Certificates. If a Holder of a Definitive Certificate wishes at any time
to transfer such Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the related Regulation S
Book-Entry Certificate or the related Rule 144A Book-Entry Certificate,
such transfer may be effected only in accordance with the Applicable
Procedures, and this Section 5.02(b)(vi). Upon receipt by the Certificate
Registrar at the Registrar Office of (1) the Definitive Certificate to be
transferred with an assignment and transfer pursuant to Section 5.02(d),
(2) written instructions given in accordance with the Applicable
Procedures from a Depository Participant directing the Certificate
Registrar to credit or cause to be credited to another specified
Depository Participant's account a beneficial interest in such Regulation
S Book-Entry Certificate or such Rule 144A Book-Entry Certificate, as the
case may be, in an amount equal to the Denomination of the Definitive
Certificate to be so transferred, (3) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Depository Participant (and, in the case of any transfer
pursuant to Regulation S, the Euroclear or Clearstream account, as the
case may be) to be credited with such beneficial interest, and (4) (x) if
delivery is to be taken in the form of a beneficial interest in the
Regulation S Book-Entry Certificate, a Regulation S Transfer Certificate
from the transferor or (y) an Investment Representation Letter from the
transferee to the effect that such transferee is a Qualified Institutional
Buyer, if delivery is to be taken in the form of a beneficial interest in
the Rule 144A Book-Entry Certificate, the Certificate Registrar shall
cancel such Definitive Certificate, execute and deliver a new Definitive
Certificate for the Denomination of the Definitive Certificate not so
transferred, registered in the name of the Holder, and the Certificate
Registrar, as custodian of the Book-Entry Certificates, shall increase the
Denomination of the Regulation S Book-Entry Certificate or the Rule 144A
Book-Entry Certificate, as the case may be, by the Denomination of the
Definitive Certificate to be so transferred, and credit or cause to be
credited to the account of the Person specified in such instructions (who,
in the case of any increase in the Regulation S Book-Entry Certificate
during the Restricted Period, shall be a Depository Participant acting for
or on behalf of Euroclear or Clearstream, or both, as the case may be) a
corresponding Denomination of the Rule 144A Book-Entry Certificate or the
Regulation S Book-Entry Certificate, as the case may be.
It is the intent of the foregoing that under no circumstances may an
Institutional Accredited Investor that is not a Qualified Institutional Buyer
take delivery in the form of a beneficial interest in a Book-Entry Certificate.
(vii) Transfers of Definitive Certificates to Definitive
Certificates. Any and all transfers from a Definitive Certificate to a
transferee wishing to take delivery in the form of a Definitive
Certificate will require the transferee to take delivery subject to the
restrictions on the transfer of such Definitive Certificate described on
the face of such Certificate, and such transferee agrees that it will
transfer such Definitive Certificate only as provided therein and herein.
No such transfer shall be made and the Certificate Registrar shall not
register any such transfer unless such transfer is made in accordance with
procedures substantially consistent with those set forth in Section
5.02(b)(v).
(viii) An exchange of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate or Certificates, an exchange of a
Definitive Certificate or Certificates for a beneficial interest in the
Book-Entry Certificate and an exchange of a Definitive Certificate or
Certificates for another Definitive Certificate or Certificates (in each
case, whether or not such exchange is made in anticipation of subsequent
transfer, and in the case of the Book-Entry Certificates, so long as the
Book-Entry Certificates remain outstanding and are held by or on behalf of
the Depository), may be made only in accordance with this Section 5.02 and
in accordance with the rules of the Depository and Applicable Procedures.
Any purported or attempted transfer of a Non-Registered Certificate
in violation of the provisions of this Section 5.02(b) shall be null and void ab
initio and shall vest no rights in any purported transferee.
Unless the Non-Registered Certificates have been registered under
the Securities Act, each of the Non-Registered Certificates shall bear a legend
substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN
ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C)
(OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501
(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN
A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT, (D) (OTHER THAN WITH RESPECT TO A RESIDUAL
CERTIFICATE) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF
RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E)
(OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE
REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT
PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN
INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN
TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT
REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED
INSTITUTIONAL BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL
CERTIFICATE) AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE
REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
(c) With respect to the ERISA Restricted Certificates, no sale,
transfer, pledge or other disposition of any such Certificate shall be made
unless the Certificate Registrar shall have received either (i) a representation
letter from the proposed purchaser or transferee of such Certificate
substantially in the form of Exhibit F attached hereto, to the effect that such
proposed purchaser or transferee is not (a) an employee benefit plan subject to
the fiduciary responsibility provisions of ERISA or a plan subject to Section
4975 of the Code, or a governmental plan (as defined in Section 3(32) of ERISA)
or a church plan (as defined in Section 3(33) of ERISA) for which no election
has been made under Section 410(d) of the Code subject to any federal, state or
local law ("Similar Law") which is, to a material extent, similar to the
foregoing provisions of ERISA or the Code (each, a "Plan") or (b) a person
acting on behalf of or using the assets of any such Plan (including an entity
whose underlying assets include Plan assets by reason of investment in the
entity by such Plan and the application of Department of Labor Regulation ss.
2510.3-101), other than an insurance company using the assets of its general
account under circumstances whereby the purchase and holding of such
Certificates by such insurance company would be exempt from the prohibited
transaction provisions of ERISA and the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60 or (ii) if such Certificate which
may be held only by a person not described in (a) or (b) above, is presented for
registration in the name of a purchaser or transferee that is any of the
foregoing, an Opinion of Counsel in form and substance satisfactory to the
Certificate Registrar and the Depositor to the effect that the acquisition and
holding of such Certificate by such purchaser or transferee will not constitute
or result in a non-exempt "prohibited transaction" within the meaning of ERISA,
Section 4975 of the Code or any Similar Law, and will not subject the Trustee,
the Paying Agent, the Certificate Registrar, the Master Servicers, the Special
Servicer, the Underwriters, the Initial Purchaser or the Depositor to any
obligation or liability (including obligations or liabilities under ERISA,
Section 4975 of the Code or any such Similar Law) in addition to those set forth
in the Agreement. The Certificate Registrar shall not register the sale,
transfer, pledge or other disposition of any ERISA Restricted Certificate unless
the Certificate Registrar has received either the representation letter
described in clause (i) above or in the case of an ERISA Restricted Certificate,
the Opinion of Counsel described in clause (ii) above. The costs of any of the
foregoing representation letters or Opinions of Counsel shall not be borne by
any of the Depositor, the Master Servicers, the Special Servicer, the Trustee,
the Paying Agent, the Underwriters, the Initial Purchaser, the Certificate
Registrar or the Trust Fund. Each Certificate Owner of an ERISA Restricted
Certificate shall be deemed to represent that it is not a Person specified in
clauses (a) or (b) above. Any transfer, sale, pledge or other disposition of any
ERISA Restricted Certificates that would constitute or result in a prohibited
transaction under ERISA, Section 4975 of the Code or any Similar Law, or would
otherwise violate the provisions of this Section 5.02(c) shall be deemed
absolutely null and void ab initio, to the extent permitted under applicable
law.
So long as any of the Class of Certificates remains outstanding,
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 Paying Agent under
clause (ii) below to deliver payments to a Person other than such Person.
The rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(A) (i) No Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Disqualified Organization or
agent thereof (including a nominee, middleman or similar person) (an
"Agent"), a Plan or a Person acting on behalf of or investing the
assets of a Plan, including any entity whose underlying assets
include Plan assets by reason of investment in the entity by such
Plan and the application of Department of Labor Regulations ss.
2510.3-101 (such Plan or Person, an "ERISA Prohibited Holder") or a
Non-U.S. Person and (ii) each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall be a Permitted
Transferee and in each case shall promptly notify the Master
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 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 Paying Agent shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions all
information in its possession and necessary to compute any tax imposed as
a result of the Transfer of an Ownership Interest in a Residual
Certificate to any Person who is a Disqualified Organization or Agent
thereof, including the information described in Treasury Regulations
Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Certificate.
(d) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange. Subject to the restrictions on transfer set forth in this Section 5.02
and Applicable Procedures, any Certificate Owner owning a beneficial interest in
a Non-Registered Certificate may cause the Certificate Registrar to request that
the Depository exchange such Certificate Owner's beneficial interest in a
Book-Entry for a Definitive Certificate or Certificates. Following a proper
request for transfer or exchange, the Certificate Registrar shall, within 5
Business Days of such request if made at such Registrar Office, or within 10
Business Days if made at the office of a transfer agent (other than the
Certificate Registrar), execute and deliver at such Registrar Office or at the
office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, a Definitive Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested. The presentation for transfer or exchange of any Definitive
Certificate shall not be valid unless made at the Registrar Office or at the
office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of 15 days preceding any Distribution Date.
(e) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate (other than a Definitive Certificate
issued in exchange for a Certificate representing an interest in the Class A-1,
Class A-2, Class X-0, Xxxxx X-0, Class A-SB, Class A-1A, Class A-M, Class A-J,
Class B, Class C, Class D, Class E 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 Paying Agent, 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
Paying Agent shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Paying Agent reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Paying
Agent does withhold any amount from interest or original issue discount payments
or advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Paying Agent shall indicate the amount withheld to such
Certificateholders. Such amounts shall be deemed to have been distributed to
such Certificateholders for all purposes of this Agreement.
Section 5.03 Book-Entry Certificates. (a) The Regular Certificates
shall initially be issued as one or more Certificates registered in the name of
the Depository or its nominee and, except as provided in subsection (c) below,
transfer of such Certificates may not be registered by the Certificate Registrar
unless such transfer is to a successor Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in Section 5.02(d) above or
subsection (c) below, shall not be entitled to Definitive Certificates in
respect of such Ownership Interests. All transfers by Certificate Owners of
their respective Ownership Interests in the Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures.
(b) The Trustee, the Paying Agent, the Master 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
Paying Agent may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee, the Paying Agent
and the Certificate Registrar in writing that the Depository is no longer
willing or able to properly discharge its responsibilities with respect to the
Book-Entry Certificates and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee, the Paying
Agent and the Certificate Registrar in writing that it elects to terminate the
book-entry system through the Depository, the Paying Agent shall notify the
affected Certificate Owners, through the Depository with respect to all, any
Class or any portion of any Class of the Certificates or (iii) the Certificate
Registrar determines that Definitive Certificates are required in accordance
with the provisions of Section 5.03(e), of the occurrence of any such event and
of the availability of Definitive Certificates to Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of the Book-Entry
Certificates by the Depository or any custodian acting on behalf of the
Depository, accompanied by registration instructions from the Depository for
registration of transfer, the Certificate Registrar shall execute, and the
Authenticating Agent shall authenticate and deliver, within 5 Business Days of
such request if made at the Registrar Office, or within 10 Business Days if made
at the office of a transfer agent (other than the Certificate Registrar), the
Definitive Certificates to the Certificate Owners identified in such
instructions. None of the Depositor, the Master Servicers, the Trustee, the
Paying Agent, the Special Servicer, the Authenticating Agent and the Certificate
Registrar shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates for purposes of evidencing
ownership of any Class of Certificates, the registered Holders of such
Definitive Certificates shall be recognized as Certificateholders hereunder and,
accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
the Certificate Registrar for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) If the Trustee has instituted or if the Special Servicer or 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 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 Paying Agent, the Trustee, the Certificate Registrar
and any agents of any of them may treat the person in whose name such
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 4.01 and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder," and none of the Depositor, the Master Servicers, the
Special Servicer, the Paying Agent, the Trustee, the Certificate Registrar and
any agent of any of them shall be affected by notice to the contrary except as
provided in Section 5.02(d).
Section 5.06 Certificate Ownership Certification. To the extent that
under the terms of this Agreement, it is necessary to determine whether any
Person is a Certificate Owner, the Paying Agent shall make such determination
based on a certificate of such Person which shall be addressed to the Paying
Agent and shall specify, in reasonable detail satisfactory to the Paying Agent,
such Person's name and address, the Class and Certificate Balance or Notional
Amount of the Regular Certificate beneficially owned, and any intermediaries
through which such Person's interest in such Regular Certificate is held (any
such certification, other than one which the Paying Agent shall refuse to
recognize pursuant to the following procedures, a "Certificate Ownership
Certification"); provided, however, that the Paying Agent shall not knowingly
recognize such Person as a Certificate Owner if such Person, to the actual
knowledge of a Responsible Officer of such party, acquired its interest in a
Regular Certificate in violation of the transfer restrictions herein, or if such
Person's certification that it is a Certificate Owner is in direct conflict with
information obtained by the Paying Agent from the Depository or any Depository
Participant with respect to the identity of a Certificate Owner; provided,
however, that to the extent the Paying Agent is required to obtain such
Certificate Owner information from the Depository or any Depository Participant,
the Paying Agent shall be reimbursed for any cost or expense in obtaining such
information from the Distribution Account. The Paying Agent may conclusively
rely on such Certificate Ownership Certification. 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 Paying Agent, at the request of such
Master Servicer, identifies such Person as a Certificateholder or Certificate
Owner.
Section 5.07 Appointment of Paying Agent. (a) LaSalle Bank National
Association is hereby initially appointed Paying Agent to act on the Trustee's
behalf in accordance with the terms of this Agreement. If the Paying Agent
resigns or is terminated, the Trustee shall appoint a successor Paying Agent
which may be the Trustee or an Affiliate thereof to fulfill the obligations of
the Paying Agent hereunder which must be (i) a corporation, national bank,
national banking association or a trust company, organized and doing business
under the laws of any state or the United States of America, authorized under
such laws to exercise corporate trust powers under this Agreement, having a
combined capital and surplus of at least $100,000,000 and subject to supervision
or examination by federal or state authority and shall not be an Affiliate of a
Master Servicer or the Special Servicer (except during any period when the
Trustee is acting as, or has become successor to, a Master Servicer or the
Special Servicer, as the case may be, pursuant to Section 7.02), (ii) an
institution insured by the Federal Deposit Insurance Corporation and (iii) an
institution whose long-term senior unsecured debt is rated "AA-" by S&P and
"Aa3" by Xxxxx'x (or such entity as would not, as evidenced in writing by such
Rating Agency, result in the qualification, downgrading or withdrawal of any of
the ratings then assigned thereby to the Certificates; provided that the Paying
Agent shall not cease to be eligible to serve as such based on a failure to
satisfy such rating requirements so long as the Paying Agent maintains a
long-term unsecured debt rating of no less than "A" from S&P and "A2" from
Xxxxx'x (or such rating as would not, as evidenced in writing by such Rating
Agency, result in a qualification, downgrading or withdrawal of any of the
ratings assigned to the Certificates.
(b) The Paying Agent may rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, Appraisal, bond or other paper
or document reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties.
(c) The Paying Agent, at the expense of the Trust Fund (but only if
such amount constitutes "unanticipated expenses of the REMIC" within the meaning
of Treasury Regulations Section 1.860G-1(b)(3)(ii)), may consult with counsel
and the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance therewith.
(d) The Paying Agent shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Agreement.
(e) The Paying Agent may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys; provided, however, that the appointment of such agents or
attorneys shall not relieve the Paying Agent of its duties or obligations
hereunder.
(f) The Paying Agent shall not be responsible for any act or
omission of the Trustee, the Master Servicer, the Special Servicer or of the
Depositor.
[End of Article V]
ARTICLE VI
THE DEPOSITOR, THE MASTER 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 or Companion 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 (such Person, in the case of each Master Servicer or
the Special Servicer, in each of the foregoing cases, the "Surviving Entity"),
as the case may be, hereunder, without the execution or filing of any paper
(other than an assumption agreement wherein the successor shall agree to perform
the obligations of and serve as the Depositor, the Master Servicer or the
Special Servicer, as the case may be, in accordance with the terms of this
Agreement) or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that such merger,
consolidation or succession will not result in a withdrawal, downgrading or
qualification of the then-current ratings of the Classes of Certificates 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 or the Special Servicer and their respective Affiliates or any
of the directors, officers, employees or agents of any of the foregoing shall be
under any liability to the Trust, the Certificateholders or the Companion
Holders for any action taken or for refraining from the taking of any action in
good faith pursuant to this Agreement, or for errors in judgment; provided,
however, that (i) this provision shall not protect the Depositor, the Master
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 (including in their capacity as Companion Paying Agents) 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) and the Special
Servicer and their respective Affiliates and any director, officer, employee or
agent of any of the foregoing shall be indemnified and held harmless by the
Trust against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments, and any other costs,
liabilities, fees and expenses incurred in connection with any legal action
(whether in equity or at law) or claim relating to this Agreement, the Mortgage
Loans, the Companion Loans or the Certificates, other than any loss, liability
or expense: (i) specifically required to be borne thereby pursuant to the terms
hereof; (ii) incurred in connection with any breach of a representation or
warranty made by it herein; (iii) incurred by reason of bad faith, willful
misconduct or negligence in the performance of its obligations or duties
hereunder, or by reason of negligent disregard of such obligations or duties; or
(iv) in the case of the Depositor and any of its directors, officers, employees
and agents, incurred in connection with any violation by any of them of any
state or federal securities law. Each of the Master 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 each of
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 Paying Agent 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 Paying Agent or the Depositor, as the
case may be, shall immediately notify the Master Servicer or the Special
Servicer, as applicable, if a claim is made by a third party with respect to
this Agreement or the Mortgage Loans entitling the Trust to indemnification
hereunder, whereupon 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 Paying Agent or the Depositor) and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the 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 Paying Agent, respectively 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 Paying Agent,
respectively, in the performance of its obligations and duties under this
Agreement or by reason of negligent disregard by the Trustee or the Paying
Agent, respectively, of its duties and obligations hereunder or by reason of
breach of any representations or warranties made herein; provided, that such
indemnity shall not cover indirect or consequential damages. Each Master
Servicer or the Special Servicer, as the case may be, shall immediately notify
the Trustee and the Paying Agent, respectively, if a claim is made by a third
party with respect to this Agreement, whereupon the Trustee or the Paying Agent
shall assume the defense of such claim (with counsel reasonably satisfactory to
the Master 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 Paying Agent shall not affect
any rights any of the foregoing Persons may have to indemnification under this
Agreement or otherwise, unless the Trustee's or the Paying Agent's defense of
such claim is materially prejudiced thereby.
(e) The Depositor agrees to indemnify 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 000 Xxxxxxxxx Xxxxxx Master Servicer, the 000 Xxxxxxxxx
Xxxxxx Special Servicer, the Depositor, the 000 Xxxxxxxxx Xxxxxx Co-Trustee and
the 000 Xxxxxxxxx Xxxxxx Trustee, and any of their respective directors,
officers, employees or agents (collectively, the "599 Lexington Avenue
Indemnified Parties"), shall be indemnified by the Trust and held harmless
against the Trust's pro rata share (subject to the 000 Xxxxxxxxx Xxxxxx
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 000 Xxxxxxxxx Xxxxxx Mortgage Loan under the
0000-XXX00 Xxxxxxx Agreement or this Agreement, reasonably requiring the use of
counsel or the incurring of expenses, other than any losses incurred by reason
of any 000 Xxxxxxxxx Xxxxxx 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 0000-XXX00 Xxxxxxx Agreement
or the 000 Xxxxxxxxx Xxxxxx Intercreditor Agreement.
(g) The AmeriCold Portfolio Master Servicer, the AmeriCold Portfolio
Special Servicer, the AmeriCold Portfolio Primary Servicer, the Depositor and
the AmeriCold Portfolio Trustee, and any of their respective directors,
officers, employees or agents (collectively, the "AmeriCold Portfolio
Indemnified Parties"), shall be indemnified by the Trust and held harmless
against the Trust's pro rata share (subject to the AmeriCold Portfolio
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 AmeriCold Portfolio Mortgage Loan under the
2007-CIBC18 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 AmeriCold Portfolio 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 2007-CIBC18 Pooling Agreement or the
AmeriCold Portfolio Intercreditor Agreement.
The indemnification provided herein shall survive the termination of
this Agreement and the termination or resignation of each Master Servicer, the
Trustee, the Paying Agent and the Special Servicer.
Section 6.04 Depositor, 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. 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 with
respect to Non-Specially Serviced Mortgage Loans, as to all matters for which a
Master Servicer must obtain the consent or deemed consent of the Special
Servicer, and a 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 Directing Certificateholder, and (3) the Special Servicer with respect to
all Mortgage Loans for which an extension of maturity is being considered by the
Special Servicer or by the Master Servicer subject to consent or deemed consent
of the Special Servicer, and notwithstanding anything herein to the contrary,
except as set forth in, and in any event subject to, Section 3.08(f) and the
second and third paragraphs of this Section 6.07, both (a) such Master Servicer
will not be permitted to take any of the following actions unless it has
obtained the consent of the Special Servicer (which will be deemed granted if
the Special Servicer does not respond within a specified number of days
following such Master Servicer's delivery of certain notice and other
information) and (b) the Special Servicer will not be permitted to consent to
such Master Servicer's taking any of the following actions, nor will the Special
Servicer itself be permitted to take any of the following actions, as to which
the Directing Certificateholder has objected in writing within ten (10) Business
Days of being notified thereof (provided that if such written objection has not
been received by 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
but excluding waiver of Default Interest or late payment charges) of a
Mortgage Loan or any extension of the maturity date of any Mortgage Loan;
(iii) any sale of a Defaulted Mortgage Loan or REO Property (other
than in connection with the termination of the Trust Fund) for less than
the applicable Purchase Price (other than in connection with the exercise
of the Purchase Option);
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any release of collateral or any acceptance of substitute or
additional collateral for a Mortgage Loan, or any consent to either of the
foregoing, other than required pursuant to the specific terms of the
related Mortgage Loan and for which there is no material lender
discretion;
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to a Mortgage Loan or any consent to such waiver or consent
to a transfer of the Mortgaged Property or interests in the Mortgagor or
consent to the incurrence of additional debt, other than any such transfer
or incurrence of debt as may be effected without the consent of the lender
under the related loan agreement;
(vii) any property management company changes (with respect to a
Mortgage Loan with a principal balance greater than $2,500,000) or
franchise changes for which the lender is required to consent or approve
under the Mortgage Loan documents;
(viii) releases of any escrows, reserve accounts or letters of
credit held as performance escrows or reserves other than those required
pursuant to the specific terms of the related Mortgage Loan and for which
there is no material lender discretion;
(ix) any acceptance of an assumption agreement releasing a Mortgagor
from liability under a Mortgage Loan other than pursuant to the specific
terms of such Mortgage Loan; and
(x) any determination by the Special Servicer of an Acceptable
Insurance Default.
provided that, in the event that the Special Servicer or 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,
with respect to the foregoing matters, or any other matter requiring consent of
the Directing Certificateholder in this Agreement, is necessary to protect the
interests of the Certificateholders (as a collective whole), the Special
Servicer or Master Servicer, as applicable may take any such action without
waiting for the Directing Certificateholder's response.
In addition, the Directing Certificateholder, subject to any rights,
if any, of the related Companion Holder to advise the Special Servicer with
respect to the related Loan Pair 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 Paying Agent, the Trust Fund 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 this Agreement,
including without limitation, the Servicing Standards, the Special Servicer or
Master Servicer, as applicable, shall disregard such refusal to consent or
advise and notify the Directing Certificateholder, the Trustee and the Rating
Agencies of its determination, including a reasonably detailed explanation of
the basis therefor. The taking of, or refraining from taking, any action by the
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 any 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, including the
Holders of the Controlling Class that the Directing Certificateholder does not
have any duties or liability to the Holders of any Class of Certificates other
than the Controlling Class, that the Directing Certificateholder shall not be
liable to any Certificateholder, by reason of its having acted solely in the
interests of the Holders of the Controlling Class including 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 Paying Agent for deposit into, any
Distribution Account any amount required to be so deposited or remitted,
which failure is not remedied by 11:00 a.m. (New York City time) on the
relevant Distribution Date; or
(ii) any failure by the Special Servicer to deposit into the REO
Account, within one Business Day after such deposit is required to be made
or to remit to the applicable Master Servicer for deposit into the
Certificate Account or to deposit into, or to remit to the Paying Agent
for deposit into, the Lower-Tier Distribution Account any amount required
to be so deposited or remitted by the Special Servicer pursuant to, and at
the time specified by, the terms of this Agreement; or
(iii) any failure on the part of the 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 (or (A) with respect to
any year that a report on Form 10-K is required to be filed, 5 Business
Days in the case of a Master Servicer's or Special Servicer's, as
applicable, obligations contemplated by Article XI, (B) 15 days in the
case of the applicable Master Servicer's failure to make a Servicing
Advance or (C) 15 days in the case of a failure to pay the premium for any
insurance policy required to be maintained hereunder) after the date on
which written notice of such failure, requiring the same to be remedied,
shall have been given (A) to the 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%; 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 holders of the 000 Xxxxxxxxx Xxxxxx Companion Loans
and the AmeriCold Portfolio Companion Loans) 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, the Paying Agent or the Trustee, or to the Master Servicer, the
Special Servicer, the Depositor, the Paying Agent and the Trustee by the
Holders of Certificates evidencing Percentage Interests aggregating not
less than 25%; provided, however, if such breach is capable of being cured
and the applicable Master Servicer or the 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) a Servicing Officer of the applicable Master Servicer or
Special Servicer, as applicable, obtains actual knowledge that Xxxxx'x has
(A) qualified, downgraded or withdrawn its rating or ratings of one or
more Classes of Certificates, or (B) has placed one or more Classes of
Certificates on "watch status" in contemplation of a ratings downgrade or
withdrawal (and such "watch status" placement shall not have been
withdrawn within 60 days of the date such Servicing Officer obtained such
actual knowledge) and, in the case of either of clauses (A) or (B), cited
servicing concerns with the applicable Master Servicer or Special
Servicer, as applicable, as the sole or material factor in such rating
action; or
(ix) 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.
(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 Trustee with respect to a
termination of any Master Servicer, to the applicable Master Servicer with
respect to a termination of the Special Servicer pursuant to and under this
Section, and, without limitation, the Trustee or the applicable Master Servicer,
as the case may be, is hereby authorized and empowered to execute and deliver,
on behalf of and at the expense of the Defaulting Party, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents, or otherwise. The Master
Servicers and Special Servicer 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 applicable Master Servicer, as the case may be, with all documents and
records requested by it to enable it to assume the Master Servicer's or the
Special Servicer's, as the case may be, functions hereunder, and shall cooperate
with the Trustee or the applicable Master Servicer, as the case may be, 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 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), 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 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 under
Section 7.01(b) solely due to an Event of Default under Section 7.01(a)(viii) or
(ix) 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, 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 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.
(d) The Directing Certificateholder shall be entitled to terminate
the rights (subject to Section 3.11 and Section 6.03(d)) and obligations of the
Special Servicer under this Agreement, with or without cause, upon ten (10)
Business Days' notice to the Special Servicer, the Master Servicers, the Paying
Agent and the Trustee; such termination to be effective upon the appointment of
a successor Special Servicer meeting the requirements of this Section 7.01(d).
Upon a termination or resignation of such Special Servicer, the Directing
Certificateholder shall appoint a successor Special Servicer; provided, however,
that (i) such successor will meet the requirements set forth in Section 7.02 and
(ii) as evidenced in writing by each of the Rating Agencies, the proposed
successor of such Special Servicer will not, in and of itself, result in a
downgrading, withdrawal or qualification of the then-current ratings provided by
the Rating Agencies in respect to any Class of then outstanding Certificates
that is rated.
(e) No penalty or fee shall be payable to the terminated Special
Servicer with respect to any termination pursuant to this Section 7.01(d). All
costs and expenses of any such termination made without cause shall be paid by
the Holders of the Controlling Class.
(f) Each Master Servicer and Special Servicer shall, as the case may
be, from time to time, take all such reasonable actions as are required by it in
accordance with the related Servicing Standards in order to prevent the
Certificates from being placed on "watch" status or downgraded due to servicing
or special servicing, as applicable, concerns by any Rating Agency. In no event
shall the remedy for a breach of the foregoing covenant extend beyond
termination pursuant to Section 7.01(a)(iii) and the resulting operation of
Section 7.01(b) and (c) and the payment by the terminated applicable Master
Servicer (or the netting from the proceeds of the bid from a Successful Bidder)
of "out of pocket" expenses incurred in connection with obtaining bids and/or
transferring servicing. The operation of this subsection (f) shall not be
construed to limit the effect of Section 7.01(a)(viii), (ix), (x) or (xi).
Section 7.02 Trustee to Act; Appointment of Successor. On and after
the time 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 Trustee shall be the successor to the
applicable Master Servicer and the applicable Master Servicer shall be the
successor to the Special Servicer, until such successor to the Special Servicer
is appointed by the Directing Certificateholder as provided in Section 7.01(d),
as applicable, in all respects in its capacity as Master Servicer or Special
Servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to, and have the benefit of, all of the rights,
(subject to Section 3.11 and Section 6.03) benefits, responsibilities, duties,
liabilities and limitations on liability relating thereto and that arise
thereafter placed on or for the benefit of 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 Trustee or the applicable Master
Servicer, as the case may be, in its capacity as successor to a Master Servicer
or 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 the predecessor Master Servicer or Special Servicer or for any
losses incurred by the predecessor Master Servicer pursuant to Section 3.06
hereunder, nor shall the Trustee or the applicable Master Servicer, as the case
may be, be required to purchase any Mortgage Loan hereunder solely as a result
of its obligations as successor Master Servicer or Special Servicer, as the case
may be. Subject to Section 3.11, as compensation therefor, the Trustee as
successor Master Servicer shall be entitled to the Servicing Fees and all fees
relating to the Mortgage Loans or Companion Loans which 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
applicable Master Servicer as successor to the Special Servicer shall be
entitled to the Special Servicing Fees to which the Special Servicer would have
been entitled if the Special Servicer had continued to act hereunder. Should the
Trustee or the applicable Master Servicer, as the case may be, succeed to the
capacity of the Master Servicer or the Special Servicer, as the case may be, the
Trustee or the applicable Master Servicer, as the case may be, shall be afforded
the same standard of care and liability as the Master Servicer or the Special
Servicer, as applicable, hereunder notwithstanding anything in Section 8.01 to
the contrary, but only with respect to actions taken by it in its role as
successor Master Servicer or successor Special Servicer, as the case may be, and
not with respect to its role as Trustee or the applicable Master Servicer, as
the case may be, hereunder. Notwithstanding the above, the Trustee may, if it
shall be unwilling to act as successor to the applicable Master Servicer, or
shall, if it is unable to so act, or if the Trustee is not approved as a
servicer by each Rating Agency, or if the Directing Certificateholder or the
Holders of Certificates entitled to at least 51% of the Voting Rights so request
in writing to the Trustee, promptly appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution
which meets the criteria set forth in Section 6.04 and otherwise herein, as the
successor to 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 Master Servicer or the Special Servicer of all its responsibilities, duties
and liabilities hereunder that arise thereafter and upon Rating Agency
confirmation, and which appointment has been approved by the Directing
Certificateholder, such approval not to be unreasonably withheld. Pending
appointment of a successor to the Master Servicer or the Special Servicer
hereunder, unless the Trustee or the applicable Master Servicer, as the case may
be, shall be prohibited by law from so acting, the Trustee or the applicable
Master Servicer, as the case may be, 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
applicable Master Servicer, as the case may be, may make such arrangements for
the compensation of such successor out of payments on Mortgage Loans as it and
such successor shall agree; provided, however, that no such compensation with
respect to a successor Master Servicer or successor Special Servicer, as the
case may be, shall be in excess of that permitted the terminated Master Servicer
or Special Servicer, as the case may be, hereunder. The Trustee, the Master
Servicer or the Special Servicer (whichever is not the terminated party) and
such successor shall take such action, consistent with this Agreement, as shall
be necessary to effectuate any such succession. Any costs and expenses
associated with the transfer of the servicing function (other than with respect
to a termination without cause) under this Agreement shall be borne by the
predecessor Master Servicer or Special Servicer, as applicable.
Section 7.03 Notification to Certificateholders. (a) Upon any
resignation of 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 Paying Agent shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five (5) days after the Paying Agent
would be deemed to have notice of the occurrence of such an event in accordance
with Section 8.02(vii), the Paying Agent shall transmit by mail to the Depositor
and all Certificateholders notice of such occurrence, unless such default shall
have been cured.
Section 7.04 Waiver of Events of Default. The Holders of
Certificates representing at least 66(2)/3% of the Voting Rights allocated to
each Class of Certificates affected by any Event of Default hereunder may waive
such Event of Default within 20 days of the receipt of notice from the Paying
Agent of the occurrence of such Event of Default; provided, however, that an
Event of Default under clause (i) of Section 7.01(a) may be waived only by all
of the Certificateholders of the affected Classes. Upon any such waiver of an
Event of Default, such Event of Default shall cease to exist and shall be deemed
to have been remedied for every purpose hereunder. Upon any such waiver of an
Event of Default by Certificateholders, the Trustee shall be entitled to recover
all costs and expenses incurred by it in connection with enforcement action
taken with respect to such Event of Default prior to such waiver from the Trust
Fund. No such waiver shall extend to any subsequent or other Event of Default or
impair any right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor shall be entitled to
the same Voting Rights with respect to the matters described above as they would
if any other Person held such Certificates.
Section 7.05 Trustee as Maker of Advances. In the event that any
Master Servicer fails to fulfill its obligations hereunder to make any Advances
and such failure remains uncured, the Trustee shall perform such obligations (x)
within five Business Days following such failure by such Master Servicer with
respect to Servicing Advances resulting in an Event of Default under Section
7.01(a)(iii) hereof to the extent a Responsible Officer of the Trustee has
actual knowledge of such failure with respect to such Servicing Advances and (y)
by noon, New York City time, on the related Distribution Date with respect to
P&I Advances pursuant to the Paying Agent's notice of failure pursuant to
Section 4.03(a) unless such failure has been cured. With respect to any such
Advance made by the Trustee, the Trustee shall succeed to all of the 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 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 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 Trustee shall be entitled to conclusively rely on any notice given
with respect to a Nonrecoverable Advance hereunder.
[End of Article VII]
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE PAYING AGENT
Section 8.01 Duties of the Trustee and the Paying Agent. (a) The
Trustee and the Paying Agent, prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs. Any permissive right of the Trustee and the Paying Agent
contained in this Agreement shall not be construed as a duty.
(b) The Trustee or the Paying Agent, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee or the Paying Agent which are
specifically required to be furnished pursuant to any provision of this
Agreement (other than the Mortgage Files, the review of which is specifically
governed by the terms of Article II), shall examine them to determine whether
they conform to the requirements of this Agreement. If any such instrument is
found not to conform to the requirements of this Agreement in a material manner,
the Trustee or the Paying Agent shall notify the party providing such instrument
and requesting the correction thereof. The Trustee or the Paying Agent shall not
be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, any Master Servicer or the Special Servicer or another Person, and
accepted by the Trustee or the Paying Agent in good faith, pursuant to this
Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee or the Paying Agent from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct or bad faith; provided,
however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) Neither the Trustee nor the Paying Agent shall be liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee or the Paying Agent, respectively,
unless it shall be proved that the Trustee or the Paying Agent,
respectively, was negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates entitled to at least 25% of
the Voting Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement (unless a
higher percentage of Voting Rights is required for such action).
(d) The Paying Agent shall promptly make available via its internet
website initially located at "xxx.xxxxxxxx.xxx" to the Companion Holders all
reports that the Paying Agent has made available to Certificateholders under
this Agreement to the extent such reports relate to the related Companion Loan.
Section 8.02 Certain Matters Affecting the Trustee and the Paying
Agent. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Paying Agent may rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
Appraisal, bond or other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) The Trustee and the Paying Agent may consult with counsel and
the written advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in accordance
therewith;
(iii) Neither the Trustee nor the Paying Agent shall be under any
obligation to exercise any of the trusts or powers vested in it by this
Agreement or to make any investigation of matters arising hereunder or to
institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee or the Paying
Agent, as applicable, reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; neither
the Trustee nor the Paying Agent shall be required to expend or risk its
own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of Default
which has not been cured, to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Paying Agent shall be liable for
any action reasonably taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, neither
the Trustee nor the Paying Agent shall be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in writing to
do so by Holders of Certificates entitled to at least 50% of the Voting
Rights; provided, however, that if the payment within a reasonable time to
the Trustee or the Paying Agent of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee or the Paying Agent, respectively, not reasonably
assured to the Trustee or the Paying Agent by the security afforded to it
by the terms of this Agreement, the Trustee or the Paying Agent,
respectively, may require reasonable indemnity from such requesting
Holders against such expense or liability as a condition to taking any
such action. The reasonable expense of every such reasonable examination
shall be paid by the requesting Holders;
(vi) The Trustee or the Paying Agent may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys; provided, however, that the appointment of
such agents or attorneys shall not relieve the Trustee or the Paying Agent
of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, the Trustee shall not
be deemed to have notice of any Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office, and such notice references the
Certificates or this Agreement; and
(viii) Neither the Trustee nor the Paying Agent shall be responsible
for any act or omission of the Master Servicer or the Special Servicer
(unless the Trustee is acting as Master Servicer or Special Servicer, as
the case may be, in which case the Trustee shall only be responsible for
its own actions as Master Servicer or Special Servicer) or of the
Depositor.
Section 8.03 Trustee and Paying Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans. The recitals contained herein and
in the Certificates, other than the acknowledgments of the Trustee or the Paying
Agent in Sections 2.02 and 2.05 and the signature, if any, of the Certificate
Registrar and Authenticating Agent set forth on any outstanding Certificate,
shall be taken as the statements of the Depositor, each Master Servicer or the
Special Servicer, as the case may be, and the Trustee or the Paying Agent assume
no responsibility for their correctness. Neither the Trustee nor the Paying
Agent makes any representations as to the validity or sufficiency of this
Agreement or of any Certificate (other than as to the signature, if any, of the
Trustee or the Paying Agent set forth thereon) or of any Mortgage Loan or
related document. Neither the Trustee nor the Paying Agent shall be accountable
for the use or application by the Depositor of any of the Certificates issued to
it or of the proceeds of such Certificates, or for the use or application of any
funds paid to the Depositor in respect of the assignment of the Mortgage Loans
to the Trust Fund, or any funds deposited in or withdrawn from the applicable
Certificate Account or any other account by or on behalf of the Depositor, each
Master Servicer, the Special Servicer or in the case of the Trustee, the Paying
Agent (unless the Trustee is acting as Paying Agent). The Trustee and the Paying
Agent shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, any Master Servicer or the Special Servicer and
accepted by the Trustee or the Paying Agent, in good faith, pursuant to this
Agreement.
Section 8.04 Trustee or Paying Agent May Own Certificates. The
Trustee or the Paying Agent, each in its individual capacity, not as Trustee or
Paying Agent, may become the owner or pledgee of Certificates, and may deal with
the Depositor, each Master Servicer, the Special Servicer, the Initial Purchaser
and the Underwriters in banking transactions, with the same rights it would have
if it were not Trustee or the Paying Agent.
Section 8.05 Fees and Expenses of Trustee and Paying Agent;
Indemnification of Trustee and Paying Agent. (a) As compensation for the
performance of their respective duties hereunder, the Trustee will be paid the
Trustee Fee equal to the Trustee's portion of one month's interest at the
Trustee Fee Rate, which shall cover recurring and otherwise reasonably
anticipated expenses of the Trustee. The Trustee Fee shall be paid monthly on a
Mortgage Loan-by-Mortgage Loan basis. As to each Mortgage Loan and REO Loan, the
Trustee Fee shall accrue from time to time at the Trustee's portion of the
Trustee Fee Rate and shall be computed on the basis of the Stated Principal
Balance of such Mortgage Loan and a 360-day year consisting of twelve 30-day
months. The Trustee Fee (which shall not be limited to any provision of law in
regard to the compensation of a trustee of an express trust) shall constitute
the Trustee's sole form of compensation for all services rendered by it in the
execution of the trusts hereby created and in the exercise and performance of
any of the powers and duties of the Trustee hereunder. No Trustee Fee shall be
payable with respect to the Companion Loans.
(b) The Trustee, the Paying Agent (in each case, including in its
individual capacity) and any director, officer, employee or agent of the Trustee
and the Paying Agent, respectively, shall be entitled to be indemnified and held
harmless by the Trust Fund (to the extent of amounts on deposit in the
Certificate 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 Paying Agent, respectively, relating to the exercise and
performance of any of the powers and duties of the Trustee or the Paying Agent,
respectively, hereunder; provided, however, that none of the Trustee or the
Paying Agent, nor any of the other above specified Persons shall be entitled to
indemnification pursuant to this Section 8.05(b) for (i) allocable overhead,
(ii) expenses or disbursements incurred or made by or on behalf of the Trustee
or the Paying Agent, respectively, in the normal course of the Trustee or the
Paying Agent, respectively, performing its duties in accordance with any of the
provisions hereof, which are not "unanticipated expenses of the REMIC" within
the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii), (iii) any
expense or liability specifically required to be borne thereby pursuant to the
terms hereof or (iv) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of the Trustee's
or the Paying Agent's, respectively, obligations and duties hereunder, or by
reason of negligent disregard of such obligations or duties, or as may arise
from a breach of any representation, warranty or covenant of the Trustee or the
Paying Agent, respectively, made herein. The provisions of this Section 8.05(b)
shall survive the termination of this Agreement and any resignation or removal
of the Trustee or the Paying Agent, respectively, and appointment of a successor
thereto. The foregoing indemnity shall also apply to the Paying Agent in its
capacities of Certificate Registrar and Authenticating Agent.
Section 8.06 Eligibility Requirements for Trustee and Paying Agent.
The Trustee and the Paying Agent hereunder shall at all times be, and will be
required to resign if it fails to be, (i) a corporation, national bank, national
banking association or a trust company, organized and doing business under the
laws of any state or the United States of America, authorized under such laws to
exercise corporate trust powers and to accept the trust conferred under this
Agreement, having a combined capital and surplus of at least $100,000,000 and
subject to supervision or examination by federal or state authority and shall
not be an Affiliate of any Master Servicer or the Special Servicer (except
during any period when the Trustee 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) with respect to the Trustee only, an institution whose long-term
senior unsecured debt is rated "AA-" by S&P and "Aa3" by Xxxxx'x (or such entity
as would not, as evidenced in writing by such Rating Agency, result in the
qualification, downgrading or withdrawal of any of the ratings then assigned
thereby to the Certificates; provided that the Trustee shall not cease to be
eligible to serve as such based on a failure to satisfy such rating requirements
so long as the Trustee maintains a long-term unsecured debt rating of no less
than "A+" from S&P and "A1" from Xxxxx'x and a short-term unsecured debt rating
of at least "A-1" by S&P (or such rating as would not, as evidenced in writing
by such Rating Agency, result in a qualification, downgrading or withdrawal of
any of the ratings assigned to the Certificates).
If such corporation, national bank or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation,
national bank or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In the event the place of business from which the Paying Agent
administers the Upper-Tier REMIC and the Lower-Tier REMIC or in which the
Trustee's office is located is in a state or local jurisdiction that imposes a
tax on the Trust Fund on the net income of a REMIC (other than a tax
corresponding to a tax imposed under the REMIC Provisions), the Paying Agent or
the Trustee, as applicable shall elect either to (i) resign immediately in the
manner and with the effect specified in Section 8.07, (ii) pay such tax at no
expense to the Trust or (iii) administer the Upper-Tier REMIC and the Lower-Tier
REMIC from a state and local jurisdiction that does not impose such a tax.
Section 8.07 Resignation and Removal of the Trustee and Paying
Agent. (a) The Trustee and the Paying Agent may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Depositor, each Master Servicer, the Special Servicer and the Trustee or the
Paying Agent, as applicable, and to all Certificateholders. Upon receiving such
notice of resignation, the Depositor shall promptly appoint a successor Trustee
or paying agent acceptable to each Master Servicer and the Directing
Certificateholder by written instrument, in duplicate, which instrument shall be
delivered to the resigning Trustee or Paying Agent and to the successor Trustee
or paying agent. A copy of such instrument shall be delivered to each Master
Servicer, the Special Servicer, the Certificateholders and the Trustee or Paying
Agent, as applicable, by the Depositor. If no successor Trustee or paying agent
shall have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Trustee or Paying Agent
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(b) If at any time the Trustee or Paying Agent shall cease to be
eligible in accordance with the provisions of Section 8.06 (and in the case of
the Paying Agent, Section 5.07) and shall fail to resign after written request
therefor by the Depositor or any Master Servicer, or if at any time the Trustee
or Paying Agent shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or the Paying Agent or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or Paying Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or if the Trustee or Paying Agent
(if different than the Trustee) shall fail (other than by reason of the failure
of either the applicable Master Servicer or the Special Servicer to timely
perform its obligations hereunder or as a result of other circumstances beyond
the Trustee's or Paying Agent's, as applicable, reasonable control), to timely
publish any report to be delivered, published or otherwise made available by the
Trustee or Paying Agent pursuant to Section 4.02 and such failure shall continue
unremedied for a period of five days, or if the Trustee or Paying Agent fails to
make distributions required pursuant to Sections 3.05(c), 4.01 or 9.01, then the
Depositor may remove the Trustee or Paying Agent, as applicable, and appoint a
successor Trustee or paying agent acceptable to each Master Servicer or paying
agent acceptable to the Trustee or Paying Agent, as applicable, by written
instrument, in duplicate, which instrument shall be delivered to the Trustee or
Paying Agent so removed and to the successor Trustee or paying agent in the case
of the removal of the Trustee or Paying Agent. A copy of such instrument shall
be delivered to each Master Servicer, the Special Servicer and the
Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee or Paying Agent and appoint a
successor Trustee or paying agent by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered to each Master
Servicer, one complete set to the Trustee or Paying Agent so removed and one
complete set to the successor so appointed. A copy of such instrument shall be
delivered to the Depositor, the Special Servicer and the remaining
Certificateholders by each Master Servicer.
(d) Any resignation or removal of the Trustee or Paying Agent and
appointment of a successor Trustee or Paying Agent pursuant to any of the
provisions of this Section 8.07 shall not become effective until acceptance of
appointment by the successor Trustee or Paying Agent as provided in Section
8.08.
Upon any succession of the Trustee or Paying Agent under this
Agreement, the predecessor Trustee or Paying Agent shall be entitled to the
payment of accrued and unpaid compensation and reimbursement as provided for
under this Agreement for services rendered and expenses incurred (including
without limitation, unreimbursed Advances). No Trustee or Paying Agent shall be
personally liable for any action or omission of any successor Trustee or Paying
Agent.
Section 8.08 Successor Trustee or Paying Agent. (a) Any successor
Trustee or Paying Agent appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor, each Master Servicer, the Special
Servicer and to its predecessor Trustee or Paying Agent an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee or Paying Agent shall become effective and such successor
Trustee or Paying Agent without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as Trustee or
Paying Agent herein. The predecessor Trustee shall deliver to the successor
Trustee all Mortgage Files and related documents and statements held by it
hereunder (other than any Mortgage Files at the time held on its behalf by a
Custodian, which Custodian, at Custodian's option shall become the agent of the
successor Trustee), and the Depositor, each Master Servicer, the Special
Servicer and the predecessor Trustee shall execute and deliver such instruments
and do such other things as may reasonably be required to more fully and
certainly vest and confirm in the successor Trustee all such rights, powers,
duties and obligations, and to enable the successor Trustee to perform its
obligations hereunder.
(b) No successor Trustee or successor Paying Agent shall, as
applicable, accept appointment as provided in this Section 8.08 unless at the
time of such acceptance such successor Trustee or successor Paying Agent, as
applicable, shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor Trustee or
successor Paying Agent as provided in this Section 8.08, the applicable Master
Servicer shall mail notice of the succession of such trustee or paying agent, as
applicable, to the Depositor and the Certificateholders. If the applicable
Master Servicer fails to mail such notice within 10 days after acceptance of
appointment by the successor Trustee or successor Paying Agent, as applicable,
such successor Trustee or successor Paying Agent shall cause such notice to be
mailed at the expense of the applicable Master Servicer.
Section 8.09 Merger or Consolidation of Trustee or Paying Agent. Any
Person into which the Trustee or the Paying Agent may be merged or converted or
with which it may be consolidated or any Person resulting from any merger,
conversion or consolidation to which the Trustee or the Paying Agent shall be a
party, or any Person succeeding to all or substantially all of the corporate
trust business of the Trustee or the Paying Agent shall be the successor of the
Trustee or the Paying Agent, as applicable, hereunder; provided, that, in the
case of the Trustee, such successor Person shall be eligible under the
provisions of Section 8.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. The Trustee or the Paying Agent, as applicable, will
provide notice of such event to the Master Servicer, the Special Servicer, the
Depositor and the Rating Agencies.
Section 8.10 Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust Fund or property securing the same may at the time be located, the Master
Servicer and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the applicable
Master Servicer and the Trustee 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 alone shall have the
power to make such appointment. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor Trustee under
Section 8.06 hereunder and no notice to Holders of Certificates of the
appointment of co-trustee(s) or separate trustee(s) shall be required under
Section 8.08 hereof. All co-trustee fees shall be payable out of the Trust Fund.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to any Master Servicer or the Special Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor Trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
Section 8.11 Appointment of Custodians. The Trustee may, with the
consent of the applicable Master Servicer, appoint one or more Custodians to
hold all or a portion of the Mortgage Files as agent for the Trustee. Each
Custodian shall be a depository institution subject to supervision by federal or
state authority, shall have combined capital and surplus of at least $15,000,000
and shall be qualified to do business in the jurisdiction in which it holds any
Mortgage File and shall not be the Depositor or any Affiliate of the Depositor.
Each Custodian shall be subject to the same obligations and standard of care as
would be imposed on the Trustee hereunder in connection with the retention of
Mortgage Files directly by the Trustee. The appointment of one or more
Custodians shall not relieve the Trustee from any of its obligations hereunder,
and the Trustee shall remain responsible for all acts and omissions of any
Custodian. Any Custodian appointed hereunder must maintain a fidelity bond and
errors and omissions policy in an amount customary for Custodians which serve in
such capacity in commercial mortgage loan securitization transactions.
Section 8.12 Access to Certain Information. (a) On or prior to the
date of the first sale of any Non-Registered Certificate to an Independent third
party, the Depositor shall provide to the Paying Agent and the Trustee three
copies of any private placement memorandum or other disclosure document used by
the Depositor or its Affiliate in connection with the offer and sale of the
Class of Certificates to which such Non-Registered Certificate relates. In
addition, if any such private placement memorandum or disclosure document is
revised, amended or supplemented at any time following the delivery thereof to
the Trustee and the Paying Agent, the Depositor promptly shall inform the
Trustee of such event and shall deliver to the Paying Agent and the Trustee a
copy of the private placement memorandum or disclosure document, as revised,
amended or supplemented. The Paying Agent (or with respect to item (ii)(j)
below, the Trustee) shall maintain at its offices primarily responsible for
administering the Trust Fund and shall, upon reasonable advance notice, make
available during normal business hours for review by any Holder of a
Certificate, the Depositor, each Master Servicer, the Special Servicer, any
Rating Agency or any other Person to whom the Paying Agent (or the Trustee, if
applicable) believes such disclosure is appropriate, originals or copies of the
following items: (i) in the case of a Holder or prospective transferee of a
Non-Registered Certificate, any private placement memorandum or other disclosure
document relating to the Class of Certificates to which such Non-Registered
Certificate belongs, in the form most recently provided to the Paying Agent and
(ii) in all cases (a) this Agreement and any amendments hereto entered into
pursuant to Section 12.01, (b) all statements required to be delivered to
Certificateholders of the relevant Class pursuant to Section 4.02 since the
Closing Date, (c) all Officer's Certificates delivered to the Paying Agent and
the Trustee since the Closing Date pursuant to Section 11.09, (d) all
accountants' reports delivered to the Trustee and the Paying Agent since the
Closing Date pursuant to Section 11.11, (e) any inspection report prepared by
any Master Servicer, Sub-Servicer or Special Servicer, as applicable, and
delivered to the Trustee and the Paying Agent 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 Paying
Agent pursuant to Section 3.12(c), together with the accompanying written
reports to be prepared by the Special Servicer and delivered to the Paying Agent
pursuant to Section 3.12(b), (g) any and all notices, reports and Environmental
Assessments delivered to the Paying Agent with respect to any Mortgaged Property
securing a Defaulted Mortgage Loan and Companion Loan as to which the
environmental testing contemplated by Section 3.09(c) revealed that either of
the conditions set forth in clauses (i) and (ii) of the first sentence thereof
was not satisfied (but only for so long as such Mortgaged Property or the
related Mortgage Loan are part of the Trust Fund), (h) any and all
modifications, waivers and amendments of the terms of a Mortgage Loan and
Companion Loan entered into by the applicable Master Servicer or the Special
Servicer and delivered to the Paying Agent pursuant to Section 3.20 (but only
for so long as the affected Mortgage Loan and Companion Loan is part of the
Trust Fund), (i) any and all Officer's Certificates delivered to the Paying
Agent to support the 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 Paying
Agent upon request; provided, however, that the Paying Agent (or the Trustee, if
applicable) shall be permitted to require payment of a sum sufficient to cover
the reasonable costs and expenses of providing such copies, except in the case
of copies provided to the Directing Certificateholder or the Rating Agencies,
which shall be free of charge (except for extraordinary or duplicate requests).
In addition, without limiting the generality of the foregoing, any Class J,
Class K, Class L, Class M, Class N, Class P, Class Q and Class NR
Certificateholder may upon request from the Paying Agent obtain a copy of any
factual report (other than the Asset Status Report) delivered to the Rating
Agencies under this Agreement. Nothing contained in this Section 8.12(a) shall
be construed to limit the reports and information described on Exhibit M
attached hereto and required to be delivered to the Directing Certificateholder
without charge.
(b) The Paying Agent shall make available to certain financial
market publishers, which initially shall be Bloomberg, L.P., Xxxxx, LLC and
Intex Solutions, Inc. on a monthly basis all CMSA reports and any other reports
required to be delivered by the Paying Agent pursuant to Article IV hereof. If
any such information is provided on or before September 6, 2007, the Paying
Agent shall make the Prospectus available to Bloomberg, L.P., Xxxxx, LLC and
Intex Solutions, Inc.
(c) Notwithstanding anything to the contrary herein, in addition to
the reports and information made available and distributed pursuant to the terms
of this Agreement (including the information set forth in Section 8.12(a)), the
Paying Agent shall, in accordance with such reasonable rules and procedures as
each may adopt (which may include the requirement that an agreement that
provides that such information shall be used solely for purposes of evaluating
the investment characteristics of the Certificates be executed), also provide
the reports available to Certificateholders pursuant to Section 4.02, as well as
certain additional information received by the Paying Agent, to any
Certificateholder, the Underwriters, the Placement Agents, any Certificate Owner
or any prospective investor identified as such by a Certificate Owner or
Underwriter, that requests such reports or information; provided that the Paying
Agent, as the case may be, shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing copies of
such reports or information.
(d) With respect to any information furnished by the Paying Agent
pursuant to this Section 8.12, the Paying Agent shall be entitled to indicate
the source of such information and the Paying Agent may affix thereto any
disclaimer it deems appropriate in its discretion. The Paying Agent shall notify
Certificateholders of the availability of any such information in any manner as
it, in its sole discretion, may determine. In connection with providing access
to or copies of the items described in the preceding paragraph, the Paying Agent
may require (a) in the case of Certificate Owners, a confirmation executed by
the requesting Person substantially in form and substance reasonably acceptable
to the Paying Agent, as applicable, generally to the effect that such Person is
a beneficial holder of Certificates, is requesting the information solely for
use in evaluating such Person's investment in the Certificates and will
otherwise keep such information confidential and (b) in the case of a
prospective purchaser, confirmation executed by the requesting Person in form
and substance reasonably acceptable to the Paying Agent, generally to the effect
that such Person is a prospective purchaser of a Certificate or an interest
therein, is requesting the information solely for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. The Paying Agent shall not be liable for the dissemination of
information in accordance with this Agreement.
Section 8.13 Representations and Warranties of the Trustee. (a) The
Trustee hereby represents and warrants to the Depositor, the Master Servicers,
the Special Servicer and the Paying Agent and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized
under the laws of the United States, duly organized, validly existing and
in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's charter and by-laws or constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(iii) The Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (a) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
national banking associations specifically and (b) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee;
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the Trustee
from entering into this Agreement or, in the Trustee's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which
has not been obtained or cannot be obtained prior to the actual
performance by the Trustee of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of the Trustee to perform its obligations hereunder.
Section 8.14 Representations and Warranties of the Paying Agent. (a)
The Paying Agent hereby represents and warrants to the Depositor, the Master
Servicers, the Special Servicer and the Trustee and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Paying Agent is a national banking association duly
organized under the laws of the United States, duly organized, validly
existing and in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Paying
Agent, and the performance and compliance with the terms of this Agreement
by the Paying Agent, will not violate the Paying Agent's charter and
by-laws or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the
breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets;
(iii) The Paying Agent has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Paying Agent, enforceable against the Paying
Agent in accordance with the terms hereof, subject to (a) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally and the rights of
creditors of national banking associations specifically and (b) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law;
(v) The Paying Agent is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Paying Agent's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Paying Agent to perform its obligations under this
Agreement or the financial condition of the Paying Agent;
(vi) No litigation is pending or, to the best of the Paying Agent's
knowledge, threatened against the Paying Agent which would prohibit the
Paying Agent from entering into this Agreement or, in the Paying Agent's
good faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Paying Agent to perform its obligations
under this Agreement or the financial condition of the Paying Agent; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Paying Agent, or compliance by the Paying Agent with,
this Agreement or the consummation of the transactions contemplated by
this Agreement, except for any consent, approval, authorization or order
which has not been obtained or cannot be obtained prior to the actual
performance by the Paying Agent of its obligations under this Agreement,
and which, if not obtained would not have a materially adverse effect on
the ability of the Paying Agent to perform its obligations hereunder.
[End of Article VIII]
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans. Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Paying Agent, the
Depositor, the Master Servicers, the Special Servicer and the Trustee (other
than the obligations of the Paying Agent to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by the
Paying Agent and required hereunder to be so paid on the Distribution Date
following the earlier to occur of (i) the final payment (or related Advance) or
other liquidation of the last Mortgage Loan or REO Property subject thereto or
(ii) the purchase or other liquidation by the Holders of the majority of the
Controlling Class, the Special Servicer, 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
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) or (iii)
voluntary exchange by the Sole Certificateholder of all the outstanding
Certificates (other than the Class R and Class LR Certificates) for the
remaining Mortgage Loans and REO Properties in the Trust Fund pursuant to the
terms of the immediately succeeding paragraph; provided, however, that in no
event shall the trust created hereby continue beyond the expiration of 21 years
from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late ambassador of the United States to the Court of St. James's, living on the
date hereof.
Following the date on which the Class A, Class B, Class C, Class D,
Class E, Class F, Class G, Class H and Class J Certificates retire (and provided
that there is only one Holder of the then outstanding Certificates (other than
the Residual Certificates)), the Sole Certificateholder shall have the right to
exchange all of its Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and the Trust Fund's portion of each REO Property
remaining in the Trust Fund as contemplated by clause (iii) of the first
paragraph of this Section 9.01 by giving written notice to all the parties
hereto no later than 60 days prior to the anticipated date of exchange. In the
event that the Sole Certificateholder elects to exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and the
Trust Fund's portion of each REO Property remaining in the Trust in accordance
with the preceding sentence, such Sole Certificateholder, not later than the
Distribution Date on which the final distribution on the Certificates is to
occur, shall deposit in the Certificate 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 Paying Agent hereunder
through the date of the liquidation of the Trust Fund that may be withdrawn from
the Certificate Account, or an escrow account acceptable to the respective
parties hereto, pursuant to Section 3.05(a) or that may be withdrawn from the
Distribution Account pursuant to Section 3.05(a), but only to the extent that
such amounts are not already on deposit in the Certificate Account. In addition,
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 Loan Pair is secured by REO Property,
the Trust Fund's portion of the REO Property which is being purchased pursuant
to the foregoing, the portion of the above-described purchase price allocable to
such Trust Fund's portion of REO Property shall initially be deposited into the
related REO Account). Upon confirmation that such final deposits have been made
and following the surrender of all its Certificates (other than the Residual
Certificates) on the final Distribution Date, the Trustee shall, upon receipt of
a Request for Release from 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. Solely for federal income tax purposes, the Sole
Certificateholder shall be deemed to have purchased the assets of the Lower-Tier
REMIC for an amount equal to the remaining Certificate Balance of its
Certificates (other than the Class X 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 Paying
Agent and the applicable Companion Paying Agent shall terminate with respect to
any Companion Loan to the extent (i) its related AB Mortgage 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, the Paying Agent and the
other parties hereto no later than 60 days prior to the anticipated date of
purchase; provided, however, that the Master Servicer, the Special Servicer, the
Holders of the Controlling Class or the Holders of the Class LR Certificates may
so elect to purchase all of the Mortgage Loans and the Trust Fund's portion of
each REO Property remaining in the Trust Fund only on or after the first
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and the Trust Fund's portion of any REO Loans remaining in the
Trust Fund is less than 1% of the aggregate Cut-off Date Principal Balance of
the Mortgage Loans set forth in the Preliminary Statement. In the event that any
Master Servicer or the Special Servicer purchases, or the Holders of the
Controlling Class or the Holders of the Class LR Certificates purchase, all of
the Mortgage Loans and the Trust Fund's portion of each REO Property remaining
in the Trust Fund in accordance with the preceding sentence, 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. 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 each Special Servicer, then the Master Servicer, and then the Holders of
the Class LR Certificates. For purposes of this Section 9.01, the Directing
Certificateholder, with the consent of the Holders of the Controlling Class,
shall act on behalf of the Holders of the Controlling Class in purchasing the
assets of the Trust Fund and terminating the Trust.
Notice of any termination pursuant to this Section 9.01 shall be
given promptly by the Paying Agent by letter to the Certificateholders and each
Rating Agency and, if not previously notified pursuant to this Section 9.01, to
the other parties hereto mailed (a) in the event such notice is given in
connection with the purchase of all of the Mortgage Loans and each REO Property
remaining in the Trust Fund, not earlier than the 15th day and not later than
the 25th day of the month next preceding the month of the final distribution on
the Certificates, or (b) otherwise during the month of such final distribution
on or before the P&I Advance Determination Date in such month, in each case
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment of the Certificates will be made, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the offices of the Certificate Registrar or
such other location therein designated.
After transferring the Lower-Tier Distribution Amount and the amount
of any Yield Maintenance Charges distributable pursuant to Section 4.01(d) to
the Upper-Tier Distribution Account, in each case pursuant to Section 3.04(b),
and upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Paying Agent shall
distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of the
amounts then on deposit in the Upper-Tier Distribution Account that are
allocable to payments on the Class of Certificates so presented. Amounts
transferred from the Lower-Tier Distribution Account to the Upper-Tier
Distribution Account as of the final Distribution Date (exclusive of any portion
of such amounts payable or reimbursable to any Person pursuant to clause (ii) of
Section 3.05(e)) shall be allocated for these purposes, in the amounts and in
accordance with the priority set forth in Sections 4.01(b), 4.01(d) and 4.01(e)
and shall be distributed in termination and liquidation of the Uncertificated
Lower-Tier Interests and the Class LR Certificates in accordance with Sections
4.01(b), 4.01(d) and 4.01(e). Any funds not distributed on such Distribution
Date shall be set aside and held uninvested in trust for the benefit of the
Certificateholders not presenting and surrendering their Certificates in the
aforesaid manner and shall be disposed of in accordance with this Section 9.01
and Section 4.01(g).
Section 9.02 Additional Termination Requirements. (a) In the event
any Master Servicer or the Special Servicer purchases, or the Holders of the
Controlling Class or the Holders of the Class LR Certificates purchase, all of
the Mortgage Loans and the Trust Fund's portion of each REO Property remaining
in the Trust Fund as provided in Section 9.01, the Trust Fund shall be
terminated in accordance with the following additional requirements, which meet
the definition of a "qualified liquidation" in Section 860F(a)(4) of the Code:
(i) the Paying Agent shall specify the date of adoption of the plan
of complete liquidation (which shall be the date of mailing of the notice
specified in Section 9.01) in a statement attached to each of the
Upper-Tier REMIC's and the Lower-Tier REMIC's final Tax Return pursuant to
Treasury Regulations Section 1.860F-1;
(ii) during the 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the Paying
Agent on behalf of the Trustee shall sell all of the assets of the Trust
Fund to the Master Servicer, the Special Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates, as
applicable, for cash; and
(iii) within such 90 day liquidation period and immediately
following the making of the final payment on the Uncertificated Lower-Tier
Interests and the Certificates, the Paying Agent shall distribute or
credit, or cause to be distributed or credited, to the Holders of the
Class LR Certificates (in the case of the Lower-Tier REMIC) and the Class
R Certificates (in the case of the Upper-Tier REMIC) all cash on hand
(other than cash retained to meet claims), and the Trust Fund and each of
the Lower-Tier REMIC and the Upper-Tier REMIC shall terminate at that
time.
[End of Article IX]
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration. (a) The Paying Agent shall make
elections or cause elections to be made to treat each of the Lower-Tier REMIC
and the Upper-Tier REMIC as a REMIC under the Code and, if necessary, under
Applicable State and Local Tax Law. Each such election will be made on Form 1066
or other appropriate federal tax return for the taxable year ending on the last
day of the calendar year in which the Uncertificated Lower-Tier Interests and
the Certificates are issued. For the purposes of the REMIC election in respect
of the Upper-Tier REMIC, each Class of the Regular Certificates shall be
designated as the "regular interests" and the Class R Certificates shall be
designated as the sole class of "residual interests" in the Upper-Tier REMIC.
For purposes of the REMIC election in respect of the Lower-Tier REMIC, each
Class of Uncertificated Lower-Tier Interests shall be designated as the "regular
interests" and the Class LR Certificates shall be designated as the sole class
of "residual interests" in the Lower-Tier REMIC. None of the Special Servicer,
the Master Servicer nor the Trustee shall permit the creation of any "interests"
(within the meaning of Section 860G of the Code) in the Lower-Tier REMIC or the
Upper-Tier REMIC other than the foregoing interests.
(b) The Closing Date is hereby designated as the "startup day" of
each of the Lower-Tier REMIC and the Upper-Tier REMIC within the meaning of
Section 860G(a)(9) of the Code.
(c) The Paying Agent shall act on behalf of each REMIC in relation
to any tax matter or controversy involving any REMIC and shall represent each
REMIC in any administrative or judicial proceeding relating to an examination or
audit by any governmental taxing authority with respect thereto. The legal
expenses, including without limitation attorneys' or accountants' fees, and
costs of any such proceeding and any liability resulting therefrom shall be
expenses of the Trust Fund and the Paying Agent shall be entitled to
reimbursement therefor out of amounts attributable to the Mortgage Loans and any
REO Properties on deposit in the Certificate Account as provided by Section
3.05(a) unless such legal expenses and costs are incurred by reason of the
Paying Agent's willful misfeasance, bad faith or gross negligence. The Holder of
the largest Percentage Interest in each of the (i) Class R and (ii) Class LR
Certificates shall be designated, in the manner provided under Treasury
Regulations Section 1.860F-4(d) and Treasury Regulations Section
301.6231(a)(7)-1, as the "tax matters person" of the (i) Upper-Tier REMIC and
(ii) the Lower-Tier REMIC, respectively. By their acceptance thereof, the
Holders of the largest Percentage Interest in each of the (i) Class R and (ii)
Class LR Certificates hereby agrees to irrevocably appoint the Paying Agent as
their agent to perform all of the duties of the "tax matters person" for the (i)
Upper-Tier REMIC and (ii) the Lower-Tier REMIC, respectively.
(d) The Paying Agent shall prepare or cause to be prepared and shall
file, or cause to be filed, all of the Tax Returns that it determines are
required with respect to each of the Lower-Tier REMIC and the Upper-Tier REMIC
created hereunder, and shall cause the Trustee to sign such Tax Returns in a
timely manner. The ordinary expenses of preparing such returns shall be borne by
the Trustee without any right of reimbursement therefor.
(e) The Paying Agent shall provide or cause to be provided (i) to
any Transferor of a Class R Certificate or Class LR Certificate such information
as is necessary for the application of any tax relating to the transfer of such
Class R Certificate or Class LR Certificate to any Person who is a Disqualified
Organization, or in the case of a Transfer to an Agent thereof, to such Agent,
(ii) to the Certificateholders such information or reports as are required by
the Code or the REMIC Provisions including reports relating to interest,
original issue discount and market discount or premium (using the Prepayment
Assumption) and (iii) to the Internal Revenue Service on Form 8811, within 30
days after the Closing Date, the name, title, address and telephone number of
the "tax matters person" who will serve as the representative of each of the
Lower-Tier REMIC and the Upper-Tier REMIC created hereunder.
(f) The Paying Agent shall take such actions and shall cause the
Trust Fund to take such actions as are reasonably within the Paying Agent's
control and the scope of its duties more specifically set forth herein as shall
be necessary to maintain the status of each of the Lower-Tier REMIC and the
Upper-Tier REMIC as a REMIC under the REMIC Provisions and the Trustee shall
assist the Paying Agent to the extent reasonably requested by the Paying Agent
to do so. Neither the Master 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 or the Upper-Tier REMIC as a REMIC
or (ii) result in the imposition of a tax upon the Lower-Tier REMIC or the
Upper-Tier REMIC or the Trust Fund (including but not limited to the tax on
"prohibited transactions" as defined in Section 860F(a)(2) of the Code and the
tax on contributions to a REMIC set forth in Section 860G(d) of the Code, but
not including the tax on "net income from foreclosure property") (either such
event, an "Adverse REMIC Event") unless the Paying Agent receives an Opinion of
Counsel (at the expense of the party seeking to take such action or, if such
party fails to pay such expense, and the Paying Agent determines that taking
such action is in the best interest of the Trust Fund and the
Certificateholders, at the expense of the Trust Fund, but in no event at the
expense of the Paying Agent or the Trustee) to the effect that the contemplated
action will not, with respect to the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC created hereunder, endanger such status or, unless the Paying
Agent determines in its sole discretion to indemnify the Trust Fund against such
tax, result in the imposition of such a tax (not including a tax on "net income
from foreclosure property"). The Trustee shall not take or fail to take any
action (whether or not authorized hereunder) as to which the Paying Agent has
advised it in writing that it has received an Opinion of Counsel to the effect
that an Adverse REMIC Event could occur with respect to such action. The Paying
Agent may consult with counsel to make such written advice, and the cost of same
shall be borne by the party seeking to take the action not expressly permitted
by this Agreement, but in no event at the expense of the Paying Agent or the
Trustee. At all times as may be required by the Code, the Paying Agent will to
the extent within its control and the scope of its duties more specifically set
forth herein, maintain substantially all of the assets of each of the Lower-Tier
REMIC and the Upper-Tier REMIC as "qualified mortgages" as defined in Section
860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(g) In the event that any applicable federal, state or local tax,
including interest, penalties or assessments, additional amounts or additions to
tax, is imposed on the Lower-Tier REMIC or the Upper-Tier REMIC, such tax shall
be charged against amounts otherwise distributable to the Holders of the
Certificates, except as provided in the last sentence of this Section 10.01(g);
provided that with respect to the estimated amount of tax imposed on any "net
income from foreclosure property" pursuant to Section 860G(c) of the Code or any
similar tax imposed by a state or local tax authority, the Special Servicer
shall retain in the related REO Account a reserve for the payment of such taxes
in such amounts and at such times as it shall deem appropriate (or as advised by
the Paying Agent in writing), and shall remit to the Master Servicer such
reserved amounts as such Master Servicer shall request in order to pay such
taxes. Except as provided in the preceding sentence, the 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 or the Upper-Tier REMIC (but such
authorization shall not prevent the Paying Agent from contesting, at the expense
of the Trust Fund (other than as a consequence of a breach of its obligations
under this Agreement), any such tax in appropriate proceedings, and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The Paying Agent is hereby authorized to and shall segregate, into
a separate non-interest bearing account, the net income from any "prohibited
transaction" under Section 860F(a) of the Code or the amount of any taxable
contribution to the Lower-Tier REMIC or the Upper-Tier REMIC after the Startup
Day that is subject to tax under Section 860G(d) of the Code and use such income
or amount, to the extent necessary, to pay such prohibited transactions tax. To
the extent that any such tax (other than any such tax paid in respect of "net
income from foreclosure property") is paid to the Internal Revenue Service or
applicable state or local tax authorities, the Paying Agent shall retain an
equal amount from future amounts otherwise distributable to the Holders of
Residual Certificates (as applicable) and shall distribute such retained
amounts, (x) in the case of the Uncertificated Lower-Tier REMIC Interests, to
the Upper-Tier REMIC to the extent they are fully reimbursed for any Collateral
Support Deficit arising therefrom and then to the Holders of the Class LR
Certificates in the manner specified in Section 4.01(b) and (y) in the case of
the Upper-Tier REMIC, to the Holders of Class A, Class A-M, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class P, Class Q, Class NR and Class X Certificates, as
applicable, in the manner specified in Section 4.01(a), to the extent they are
fully reimbursed for any Collateral Support Deficit arising therefrom and then
to the Holders of the Class R Certificates. None of the Trustee, the Paying
Agent, the Master Servicers or the Special Servicer shall be responsible for any
taxes imposed on the Lower-Tier REMIC or the Upper-Tier REMIC except to the
extent such taxes arise as a consequence of a breach of their respective
obligations under this Agreement which breach constitutes willful misfeasance,
bad faith, or negligence by such party.
(h) The Paying Agent shall, for federal income tax purposes,
maintain or cause to be maintained books and records with respect to each of the
Lower-Tier REMIC and the Upper-Tier REMIC on a calendar year and on an accrual
basis or as otherwise may be required by the REMIC Provisions.
(i) Following the Startup Day, neither the Paying Agent nor the
Trustee shall accept any contributions of assets to the Lower-Tier REMIC and the
Upper-Tier REMIC unless the Paying Agent and the Trustee shall have received an
Opinion of Counsel (at the expense of the party seeking to make such
contribution) to the effect that the inclusion of such assets in the Lower-Tier
REMIC or the Upper-Tier REMIC will not (i) cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interests or Certificates are outstanding or (ii)
subject any of the Trust Fund or the Lower-Tier REMIC or the Upper-Tier REMIC to
any tax under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(j) Neither the Paying Agent nor the Trustee shall enter into any
arrangement by which the Trust Fund or the Lower-Tier REMIC or the Upper-Tier
REMIC will receive a fee or other compensation for services nor permit the Trust
Fund or the Lower-Tier REMIC or the Upper-Tier REMIC to receive any income from
assets other than "qualified mortgages" as defined in Section 860G(a)(3) of the
Code or "permitted investments" as defined in Section 860G(a)(5) of the Code.
(k) Solely for the purposes of Treasury Regulations Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" by which the
Certificate Balance or Notional Amount of each Class of Certificates (other than
the Class X 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 is the Rated Final Distribution Date.
(l) None of the Trustee, the Paying Agent, 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 or the Upper-Tier
REMIC or sell or dispose of any investments in the Certificate Account or the
REO Account for gain unless it has received an Opinion of Counsel that such
sale, disposition or substitution will not (a) affect adversely the status of
the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or (b) unless the
Trustee, the Paying Agent, 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 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 Paying Agent may execute any of its obligations and duties
under this Article X either directly or by or through agents or attorneys. The
Paying Agent shall not be relieved of any of its duties or obligations under
this Article X by virtue of the appointment of any such agents or attorneys.
Section 10.03 Depositor, Master Servicers and Special Servicer to
Cooperate with Paying Agent. (a) The Depositor shall provide or cause to be
provided to the Paying Agent within ten (10) days after the Depositor receives a
request from the Paying Agent, all information or data that the Paying Agent
reasonably determines to be relevant for tax purposes as to the valuations and
issue prices of the Certificates, including, without limitation, the price,
yield, Prepayment Assumptions and projected cash flow of the Certificates.
(b) 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 Paying Agent in order to enable it to perform its
duties hereunder.
Section 10.04 Appointment of REMIC Administrators. (a) The Paying
Agent may appoint at the Paying Agent's expense, one or more REMIC
Administrators, which shall be authorized to act on behalf of the Paying Agent
in performing the functions set forth in Section 10.01 herein. The Paying Agent
shall cause any such REMIC Administrator to execute and deliver to the Paying
Agent an instrument in which such REMIC Administrator shall agree to act in such
capacity, with the obligations and responsibilities herein. The appointment of a
REMIC Administrator shall not relieve the Paying Agent from any of its
obligations hereunder, and the Paying Agent shall remain responsible and liable
for all acts and omissions of the REMIC Administrator. Each REMIC Administrator
must be acceptable to the Paying Agent and must be organized and doing business
under the laws of the United States of America or of any State and be subject to
supervision or examination by federal or state authorities. In the absence of
any other Person appointed in accordance herewith acting as REMIC Administrator,
the Paying Agent hereby agrees to act in such capacity in accordance with the
terms hereof. If LaSalle Bank National Association is removed as Paying Agent,
then LaSalle Bank National Association shall be terminated as REMIC
Administrator.
(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Paying
Agent or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Paying Agent, the Master Servicers, the Special
Servicer and the Depositor. The Paying Agent may at any time terminate the
agency of any REMIC Administrator by giving written notice of termination to
such REMIC Administrator, the Master 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 Paying
Agent may appoint a successor REMIC Administrator, in which case the Paying
Agent 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 Paying Agent.
[End of Article X]
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness. The parties
hereto acknowledge and agree that the purpose of Article XI of this Agreement is
to facilitate compliance by the Depositor with the provisions of Regulation AB
and the related rules and regulations of the Commission. The Depositor shall not
exercise its rights to request delivery of information or other performance
under these provisions other than in good faith, or for purposes other than
compliance with the Securities Act, the Exchange Act, the Xxxxxxxx-Xxxxx Act
and, in each case, the rules and regulations of the Commission thereunder;
provided that in all instances the reports and certificates contemplated by
Sections 11.09, 11.10 and 11.11 shall be provided to the Rating Agencies as
required thereunder; provided, however, that the Trustee and Paying Agent shall
be deemed to have satisfied any delivery requirements to the Rating Agencies
thereunder by making such reports and certificates available on its internet
website. The parties hereto acknowledge that interpretations of the requirements
of Regulation AB may change over time, due to interpretive guidance provided by
the Commission or its staff, and agree to comply with requests made by the
Depositor in good faith for delivery of information under these provisions on
the basis of evolving interpretations of Regulation AB. In connection with the
X.X. Xxxxxx Chase Commercial Mortgage Securities Trust 2007-CIBC19, Commercial
Mortgage Pass-Through Certificates, Series 2007-CIBC19, each of the Master
Servicers, the Special Servicer, the Trustee and the Paying Agent shall
cooperate fully with the Depositor and the Paying Agent, as applicable, to
deliver or make available to the Depositor or the Paying Agent (including any of
its assignees or designees), any and all statements, reports, certifications,
records and any other information (in its possession or reasonably attainable)
necessary in the good faith determination of the Depositor to permit the
Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to each Master Servicer, the Special Servicer, the Trustee
and the Paying Agent, as applicable, and any Sub-Servicer, or the servicing of
the Mortgage Loans, reasonably believed by the Depositor to be necessary in
order to effect such compliance. For purposes of this Article XI, to the extent
any party has an obligation to exercise commercially reasonable efforts to cause
a third party to perform, such party hereunder shall not be required to bring
any legal action against such third party in connection with such obligation.
Section 11.02 Succession; Subcontractors. (a) As a condition to the
succession to a Master Servicer and the Special Servicer or to any Sub-Servicer
as servicer or sub-servicer under this Agreement by any Person (i) into which
the applicable Master Servicer and Special Servicer or such Sub-Servicer may be
merged or consolidated, or (ii) which may be appointed as a successor to any
Master Servicer and Special Servicer or to any Sub-Servicer, the applicable
Master Servicer and Special Servicer shall provide to the Depositor and the
Paying Agent, at least 15 calendar days prior to the effective date of such
succession or appointment (or such shorter period as is agreed to by the
Depositor), (x) written notice to the Depositor of such succession or
appointment and (y) in writing and in form and substance reasonably satisfactory
to the Depositor, all information relating to such successor reasonably
requested by the Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such reports under
the Exchange Act are required to be filed under the Exchange Act); provided,
however that if disclosing such information prior to such effective date would
violate any applicable law or confidentiality agreement, the applicable Master
Servicer or Special Servicer, as the case may be, shall submit such disclosure
to the Depositor no later than the first Business Day after the effective date
of such succession or appointment.
(b) Each of the Master Servicers, the Special Servicer, the
Sub-Servicer, the Trustee and the Paying Agent (each of the Master Servicers,
the Special Servicer, the Trustee and the Paying Agent and each Sub-Servicer,
for purposes of this paragraph, a "Servicer") is permitted to utilize one or
more Subcontractors to perform certain of its obligations hereunder. Such
Servicer shall promptly upon request provide to the Depositor a written
description (in form and substance satisfactory to the Depositor) of the role
and function of each Subcontractor utilized by such Servicer, specifying (i) the
identity of each Subcontractor that is a Servicing Function Participant and (ii)
the elements of the Servicing Criteria that will be addressed in assessments of
compliance provided by each such Subcontractor. As a condition to the
utilization by such Servicer of any Subcontractor determined to be a Servicing
Function Participant, such Servicer shall (i) with respect to any such
Subcontractor engaged by such Servicer that is an Initial Sub-Servicer, use
commercially reasonable efforts to cause, and (ii) with respect to any other
subcontractor with which it has entered into a servicing relationship, cause
such Subcontractor used by such Servicer for the benefit of the Depositor and
the Trustee to comply with the provisions of Section 11.10 and Section 11.11 of
this Agreement to the same extent as if such Subcontractor were such Servicer.
With respect to any Servicing Function Participant engaged by such Servicer that
is an Initial Sub-Servicer, such Servicer shall be responsible for using
commercially reasonable efforts to obtain, and with respect to each other
Servicing Function Participant engaged by such Servicer, such Servicer shall
obtain from each such Servicing Function Participant and deliver to the
applicable Persons any assessment of compliance report and related accountant's
attestation required to be delivered by such Subcontractor under Section 11.10
and Section 11.11, in each case, as and when required to be delivered.
(c) Notwithstanding the foregoing, if a Servicer engages a
Subcontractor, other than an Initial Sub-Servicer in connection with the
performance of any of its duties under this Agreement, such Servicer shall be
responsible for determining whether such Subcontractor is a "servicer" within
the meaning of Item 1101 of Regulation AB and whether any such Subcontractor
meets the criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB. If a
Servicer determines, pursuant to the preceding sentence, that such Subcontractor
is a "servicer" within the meaning of Item 1101 of Regulation AB and meets the
criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB, then such
Subcontractor shall be deemed to be a Sub-Servicer for purposes of this
Agreement, the engagement of such Sub-Servicer shall not be effective unless and
until notice is given to the Depositor and the Trustee of any such Sub-Servicer
and Subservicing Agreement. Other than with respect to the Initial Sub-Servicer,
no Subservicing Agreement shall be effective until 15 days after such written
notice is received by the Depositor and the Paying Agent (or such shorter period
as is agreed to by the Depositor). Such notice shall contain all information
reasonably necessary to enable the Paying Agent to accurately and timely report
the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such
reports under the Exchange Act are required to be filed under the Exchange Act).
(d) In connection with the succession to the Trustee under this
Agreement by any Person (i) into which the Trustee may be merged or
consolidated, or (ii) which may be appointed as a successor to the Trustee, the
Trustee shall notify the Depositor and each Rating Agency, at least 30 calendar
days prior to the effective date of such succession or appointment (or if such
prior notice is violative of applicable law or any applicable confidentiality
agreement, no later than one (1) Business Day after such effective date of
succession) and shall furnish to the Depositor in writing and in form and
substance reasonably satisfactory to the Depositor, all information reasonably
necessary for the Paying Agent to accurately and timely report, pursuant to
Section 11.07, the event under Item 6.02 of Form 8-K pursuant to the Exchange
Act (if such reports under the Exchange Act are required to be filed under the
Exchange Act).
(e) Notwithstanding anything to the contrary contained in this
Article XI, in connection with any Initial Sub-Servicer and/or any Mortgage Loan
that is the subject of an Initial Sub-Servicing Agreement, with respect to all
matters related to Regulation AB, each Master Servicer shall not have any
obligation other than to use commercially reasonable efforts to cause such
Initial Sub-Servicer to comply with its obligations under such Initial
Sub-Servicing Agreement.
Section 11.03 Filing Obligations. (a) Each Master Servicer, the
Special Servicer, the Paying Agent and the Trustee shall reasonably cooperate
with the Depositor in connection with the satisfaction of the Trust's reporting
requirements under the Exchange Act. Pursuant to Sections 11.04, 11.05, 11.06
and 11.07 of this Agreement, the Paying Agent shall prepare for execution by the
Depositor any Forms 8-K, 10-D and 10-K required by the Exchange Act, in order to
permit the timely filing thereof, and the Paying Agent shall file (via the
Commission's Electronic Data Gathering and Retrieval System ("XXXXX")) such
Forms executed by the Depositor.
Each party hereto shall be entitled to rely on the information in
the Prospectus Supplement with respect to the identity of any Sponsor, credit
enhancer, derivative provider or "significant obligor" as of the Closing Date
other than with respect to itself or any information required to be provided by
it or indemnified for by it pursuant to any separate agreement.
(b) In the event that the Paying Agent is unable to timely file with
the Commission all or any required portion of any Form 8-K, 10-D or 10-K
required to be filed by this Agreement because required disclosure information
was either not delivered to it or delivered to it after the delivery deadlines
set forth in this Agreement, the Paying Agent will promptly notify the
Depositor. In the case of Forms 10-D and 10-K, the Depositor, the Master
Servicers, the Paying Agent and Trustee will thereupon cooperate to prepare and
file a Form 12b-25 and a Form 10-D/A or Form 10-K/A, as applicable, pursuant to
Rule 12b-25 of the Exchange Act. In the case of Form 8-K, the Paying Agent will,
upon receipt of all required Form 8-K Disclosure Information and upon the
approval and direction of the Depositor, include such disclosure information on
the next succeeding Form 10-D to be filed for the Trust. In the event that any
previously filed Form 8-K, Form 10-D or Form 10-K needs to be amended, the
Paying Agent will notify the Depositor, and such other parties as needed and the
parties hereto will cooperate with the Paying Agent to prepare any necessary
Form 8-K/A, Form 10-D/A or Form 10-K/A. Any Form 15, Form 12b-25 or any
amendment to Form 8-K, Form 10-D or Form 10-K shall be signed by an officer of
the Depositor. The parties to this Agreement acknowledge that the performance by
the Paying Agent of its duties under this Section 11.03 related to the timely
preparation and filing of Form 15, a Form 12b-25 or any amendment to Form 8-K,
Form 10-D or Form 10-K is contingent upon the parties observing all applicable
deadlines in the performance of their duties under Sections 11.03, 11.04, 11.05,
11.06, 11.07, 11.08, 11.09, 11.10 and 11.11 of this Agreement. The Paying Agent
shall have no liability for any loss, expense, damage, claim arising out of or
with respect to any failure to properly prepare, arrange for execution and/or
timely file any such Form 15, Form 12b-25 or any amendments to Form 8-K, Form
10-D or Form 10-K, where such failure results from the Paying Agent's inability
or failure to receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 15, Form
12b-25 or any amendments to Forms 8-K, Form 10-D or Form 10-K, not resulting
from its own negligence, bad faith or willful misconduct.
Section 11.04 Form 10-D Filings. (a) Within 15 days after each
Distribution Date (subject to permitted extensions under the Exchange Act), the
Paying Agent shall prepare and file on behalf of the Trust any Form 10-D
required by the Exchange Act, in form and substance as required by the Exchange
Act. The Paying Agent shall file each Form 10-D with a copy of the related
Statement to Certificateholders attached thereto. Any disclosure in addition to
the Statement to Certificateholders that is required to be included on Form 10-D
("Additional Form 10-D Disclosure") shall, pursuant to the following paragraph,
be reported by the parties set forth on Exhibit Y to the Depositor and the
Paying Agent and approved by the Depositor, and the Paying Agent will have no
duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-D Disclosure, absent such reporting, direction and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, as set forth on Exhibit Y hereto, within 5 calendar days after
the related Distribution Date, (i) certain parties to this Agreement identified
on Exhibit Y hereto shall be required to provide to the Paying Agent and the
Depositor, to the extent a Regulation AB Servicing Officer or Responsible
Officer, as the case may be, has actual knowledge, in XXXXX compatible format,
or in such other format as otherwise agreed upon by the Paying Agent, the
Depositor and such providing parties, the form and substance of any Additional
Form 10-D Disclosure, if applicable, (ii) the parties listed on Exhibit Y hereto
shall include with such Additional Form 10-D Disclosure, an Additional
Disclosure Notification in the form attached hereto as Exhibit BB and (iii) the
Depositor shall approve, as to form and substance, or disapprove, as the case
may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D.
Neither the Trustee nor the Paying Agent has any duty under this Agreement to
monitor or enforce the performance by the parties listed on Exhibit Y of their
duties under this paragraph or proactively solicit or procure from such parties
any Additional Form 10-D Disclosure information. The Depositor will be
responsible for any reasonable expenses incurred by the Trustee or Paying Agent
in connection with including any Additional Form 10-D Disclosure on Form 10-D
pursuant to this paragraph.
Form 10-D requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Paying Agent that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the Paying
Agent in writing, no later than the 5th calendar day after the related
Distribution Date with respect to the filing of a report on Form 10-D if the
answer to the questions should be "no." The Paying Agent shall be entitled to
rely on such representations in preparing, executing and/or filing any such
report.
(b) After preparing the Form 10-D, the Paying Agent shall forward
electronically a copy of the Form 10-D to the Depositor for review no later than
10 calendar days after the related Distribution Date or, if the 10th calendar
day after the related Distribution Date is not a Business Day, the immediately
preceding Business Day. Within two Business Days after receipt of such copy, but
no later than the 2 Business Days prior to the 15th calendar day after the
Distribution Date, the Depositor shall notify the Paying Agent in writing (which
may be furnished electronically) of any changes to or approval of such Form 10-D
and, a duly authorized officer of the Depositor shall sign the Form 10-D and
return an electronic or fax copy of such signed Form 10-D (with an original
executed hard copy to follow by overnight mail) to the Paying Agent.
Alternatively, if the Paying Agent agrees in its sole discretion, the Depositor
may deliver to the Paying Agent manually signed copies of a power of attorney
meeting the requirements of Item 601(b)(24) of Regulation S-K under the
Securities Act, and certified copies of a resolution of the Depositor's board of
directors authorizing such power of attorney, each to be filed with each Form
10-D, in which case the Paying Agent shall sign such Forms 10-D as attorney in
fact for the Depositor. If a Form 10-D cannot be filed on time or if a
previously filed Form 10-D needs to be amended, the Paying Agent will follow the
procedures set forth in Section 11.03(b). Promptly after filing with the
Commission, the Paying Agent will make available on its internet website a final
executed copy of each Form 10-D filed by the Paying Agent. The signing party at
the Depositor can be contacted at Xxxxxx Xxxxx, Vice President and Secretary,
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (000) 000-0000, with a copy to
Xxxxxx Xxxxx, Vice President, X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number:
(000) 000-0000. The parties to this Agreement acknowledge that the performance
by the Paying Agent of its duties under this Section 11.04(b) related to the
timely preparation and filing of Form 10-D is contingent upon such parties
observing all applicable deadlines in the performance of their duties under this
Section 11.04(b). Neither the Trustee nor the Paying Agent shall have any
liability for any loss, expense, damage, or claim arising out of or with respect
to any failure to properly prepare, arrange for execution and/or timely file
such Form 10-D, where such failure results from the Paying Agent's inability or
failure to receive, on a timely basis, any information from any party to this
Agreement needed to prepare, arrange for execution or file such Form 10-D, not
resulting from its own negligence, bad faith or willful misconduct.
Section 11.05 Form 10-K Filings. (a) Within 90 days after the end of
each fiscal year of the Trust (it being understood that the fiscal year for the
Trust ends on December 31 of each year) or such earlier date as may be required
by the Exchange Act (the "10-K Filing Deadline"), commencing in March 2008, the
Paying Agent shall prepare and file on behalf of the Trust a Form 10-K, in form
and substance as required by the Exchange Act. Each such Form 10-K shall include
the following items, in each case to the extent they have been delivered to the
Paying Agent within the applicable time frames set forth in this Agreement:
(i) an annual compliance statement for each Master Servicer, the
Special Servicer and each Additional Servicer, as described under Section
11.09;
(ii) (A) the annual reports on assessment of compliance with
servicing criteria for the Trustee, each Master Servicer, the Special
Servicer, the Paying Agent, each Additional Servicer and each Servicing
Function Participant utilized by any Master Servicer, the Special
Servicer, the Paying Agent or Trustee, as described under Section 11.10;
and
(B) if any such report on assessment of compliance with
servicing criteria described under Section 11.10 identifies any
material instance of noncompliance, disclosure identifying such
instance of noncompliance, or if such report on assessment of
compliance with servicing criteria described under Section 11.10 is
not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation as to why such report is
not included;
(iii) (A) the registered public accounting firm attestation report
for the Trustee, each Master Servicer, the Special Servicer, the Paying
Agent, each Additional Servicer and each Servicing Function Participant
utilized by any Master Servicer, the Special Servicer, the Paying Agent or
the Trustee, as described under Section 11.11; and
(B) if any registered public accounting firm attestation
report described under Section 11.11 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm
attestation report is not included as an exhibit to such Form 10-K,
disclosure that such report is not included and an explanation as to
why such report is not included; and
(iv) a certification in the form attached hereto as Exhibit V, with
such changes as may be necessary or appropriate as a result of changes
promulgated by the Commission (the "Xxxxxxxx-Xxxxx Certification"), which
shall, except as described below, be signed by the senior officer of the
Depositor in charge of securitization.
Any disclosure or information in addition to (i) through (iv) above that is
required to be included on Form 10-K ("Additional Form 10-K Disclosure") shall,
pursuant to the following paragraph be reported by the parties set forth on
Exhibit Z to the Depositor and the Paying Agent and approved by the Depositor
and the Paying Agent will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-K Disclosure, absent such reporting,
direction and approval.
As set forth on Exhibit Z hereto, no later than March 15 of each
year that the Trust is subject to the Exchange Act reporting requirements,
commencing in 2008, (i) the parties listed on Exhibit Z shall be required to
provide to the Paying Agent and the Depositor, to the extent a Regulation AB
Servicing Officer or Responsible Officer, as the case may be, has actual
knowledge, in XXXXX compatible format or in such other format as otherwise
agreed upon by the Paying Agent, the Depositor and such providing parties, the
form and substance of any Additional Form 10-K Disclosure, if applicable, (ii)
the parties listed on Exhibit Z hereto shall include with such Additional Form
10-K Disclosure, an Additional Disclosure Notification in the form attached
hereto as Exhibit BB and (iii) the Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-K Disclosure on Form 10-K. Neither the Trustee nor the Paying Agent has
any duty under this Agreement to monitor or enforce the performance by the
parties listed on Exhibit Z of their duties under this paragraph or proactively
solicit or procure from such parties any Additional Form 10-K Disclosure
information. The Depositor will be responsible for any reasonable expenses
incurred by the Trustee and the Paying Agent in connection with including any
Additional Form 10-K Disclosure on Form 10-K pursuant to this paragraph.
Form 10-K requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Paying Agent that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the Paying
Agent in writing, no later than March 15th with respect to the filing of a
report on Form 10-K, if the answer to the questions should be "no." The Paying
Agent shall be entitled to rely on such representations in preparing, executing
and/or filing any such report.
(b) After preparing the Form 10-K, the Paying Agent shall forward
electronically a copy of the Form 10-K to the Depositor for review no later than
10 Business Days prior to the 10-K Filing Deadline. Within three Business Days
after receipt of such copy, but no later than March 25th, the Depositor shall
notify the Paying Agent in writing (which may be furnished electronically) of
any changes to or approval of such Form 10-K and the senior officer in charge of
securitization for the Depositor shall sign the Form 10-K and return an
electronic or fax copy of such signed Form 10-K (with an original executed hard
copy to follow by overnight mail) to the Paying Agent at such time. If a Form
10-K cannot be filed on time or if a previously filed Form 10-K needs to be
amended, the Paying Agent shall follow the procedures set forth in Section
11.03(b). Promptly after filing with the Commission, the Paying Agent will make
available on its internet website a final executed copy of each Form 10-K filed
by the Paying Agent. The signing party at the Depositor can be contacted at
Xxxxxx Xxxxx, Vice President and Secretary, X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, telecopy number: (000) 000-0000, with a copy to Xxxxxx Xxxxx, Vice
President, X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (000) 000-0000.
The parties to this Agreement acknowledge that the performance by the Paying
Agent of its duties under this Section 11.05 related to the timely preparation
and filing of Form 10-K is contingent upon the parties to this Agreement (and
any Additional Servicer or Servicing Function Participant engaged or utilized,
as applicable, by any such parties) observing all applicable deadlines in the
performance of their duties under this Section 11.05. Neither the Trustee nor
the Paying Agent shall have any liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare, arrange for
execution and/or timely file such Form 10-K, where such failure results from the
Paying Agent's inability or failure or receive, on a timely basis, any
information from the parties to this Agreement (or any Sub-Servicer or Servicing
Function Participant engaged by any such parties) needed to prepare, arrange for
execution or file such Form 10-K, not resulting from its own negligence, bad
faith or willful misconduct.
Section 11.06 Xxxxxxxx-Xxxxx Certification. Each Form 10-K shall
include a Xxxxxxxx-Xxxxx Certification in the form attached as Exhibit V
required to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act. Each
Master Servicer, the Special Servicer, the Trustee and the Paying Agent shall
provide, and (i) with respect to each Initial Sub-Servicer engaged by such
Master Servicer, the Special Servicer, as applicable, that is a Servicing
Function Participant use commercially reasonable efforts to cause such Initial
Sub-Servicer to provide, and (ii) with respect to each other Servicing Function
Participant with which it has entered into a servicing relationship with respect
to the Mortgage Loans, shall cause such Servicing Function Participant to
provide, to the Person who signs the Xxxxxxxx-Xxxxx Certification (the
"Certifying Person"), on before March 15 of each year commencing in March 2008,
a certification in the form attached hereto as Exhibit W-1, W-2 and W-3 (each, a
"Performance Certification"), as applicable, on which the Certifying Person, the
entity for which the Certifying Person acts as an officer (if the Certifying
Person is an individual), and such entity's officers, directors and Affiliates
(collectively with the Certifying Person, "Certification Parties") can
reasonably rely. In addition, in the event that any Companion Loan (other than
the 000 Xxxxxxxxx Xxxxxx Companion Loans and the AmeriCold Portfolio Companion
Loans) is deposited into a commercial mortgage securitization (an "Other
Securitization"), each Reporting Servicer, upon not less than 30 days prior
written request, shall provide to the Person who signs the Xxxxxxxx-Xxxxx
Certification with respect to such Other Securitization a certification in form
and substance similar to the applicable Performance Certification (which shall
address the matters contained in the applicable Performance Certification, but
solely with respect to the related Companion Loan) on which such Person, the
entity for which the Person acts as an officer (if the Person is an individual),
and such entity's officers, directors and Affiliates can reasonably rely. With
respect to the 000 Xxxxxxxxx Xxxxxx Companion Loans, the Paying Agent will use
its reasonable efforts to procure a Xxxxxxxx-Xxxxx back-up certification from
the 000 Xxxxxxxxx Xxxxxx Master Servicer, the 000 Xxxxxxxxx Xxxxxx Special
Servicer, the 000 Xxxxxxxxx Xxxxxx Co-Trustee and the 000 Xxxxxxxxx Xxxxxx
Trustee in form and substance similar to a Performance Certification. With
respect to the AmeriCold Portfolio Companion Loans, the Paying Agent will use
its reasonable efforts to procure a Xxxxxxxx-Xxxxx back-up certification from
the AmeriCold Portfolio Master Servicer, the AmeriCold Portfolio Special
Servicer, the AmeriCold Portfolio Primary Servicer and the AmeriCold Portfolio
Trustee in form and substance similar to a Performance Certification. The senior
officer in charge of securitization for the Depositor shall serve as the
Certifying Person on behalf of the Trust. In addition, each Reporting Servicer
shall execute a reasonable reliance certificate to enable the Certification
Parties to rely upon each (i) annual compliance statement provided pursuant to
Section 11.09, (ii) annual report on assessment of compliance with servicing
criteria provided pursuant to Section 11.10 and (iii) accountant's report
provided pursuant to Section 11.11, and shall include a certification that each
such annual compliance statement or report discloses any deficiencies or
defaults described to the registered public accountants of such Reporting
Servicer to enable such accountants to render the certificates provided for in
Section 11.11. In the event any Reporting Servicer is terminated or resigns
pursuant to the terms of this Agreement, or any applicable sub-servicing
agreement or primary servicing agreement, as the case may be, such Reporting
Servicer shall provide a certification to the Certifying Person pursuant to this
Section 11.06 with respect to the period of time it was subject to this
Agreement or the applicable sub-servicing or primary servicing agreement, as the
case may be. Each such Performance Certification shall be provided in XXXXX
compatible format, or in such other format agreed upon by the Depositor, the
Paying Agent and such providing parties.
Notwithstanding anything to the contrary contained in this Section
11.06, with respect to each year in which the Trust is not subject to the
reporting requirements of the Exchange Act, none of the parties required to
deliver any certification under this Section 11.06 shall be obligated to do so.
Section 11.07 Form 8-K Filings. Within four (4) Business Days after
the occurrence of an event requiring disclosure on Form 8-K (each such event, a
"Reportable Event"), and if requested by the Depositor and to the extent it
receives the Form 8-K Disclosure Information described below, the Paying Agent
shall prepare and file on behalf of the Trust any Form 8-K, as required by the
Exchange Act, provided that the Depositor shall file the initial Form 8-K in
connection with the issuance of the Certificates. Any disclosure or information
related to a Reportable Event or that is otherwise required to be included on
Form 8-K ("Form 8-K Disclosure Information") shall, pursuant to the following
paragraph be reported by the parties set forth on Exhibit AA to the Depositor
and the Paying Agent and approved by the Depositor, and the Paying Agent will
have no duty or liability for any failure hereunder to determine or prepare any
Form 8-K Disclosure Information or any Form 8-K, absent such reporting,
direction and approval.
As set forth on Exhibit AA hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than noon on the
2nd Business Day after the occurrence of a Reportable Event (i) the parties set
forth on Exhibit AA hereto shall be required to provide to the Depositor and the
Paying Agent, to the extent a Regulation AB Servicing Officer or Responsible
Officer, as the case may be, has actual knowledge, in XXXXX compatible format or
in such other format agreed upon by the Depositor, the Paying Agent and such
providing parties any Form 8-K Disclosure Information, if applicable, (ii) the
parties listed on Exhibit AA hereto shall include with such Form 8-K Disclosure
Information, an Additional Disclosure Notification in the form attached hereto
as Exhibit BB and (iii) the Depositor will approve, as to form and substance, or
disapprove, as the case may be, the inclusion of the Form 8-K Disclosure
Information on Form 8-K. The Trustee has no duty under this Agreement to monitor
or enforce the performance by the parties listed on Exhibit AA of their duties
under this paragraph or proactively solicit or procure from such parties any
Form 8-K Disclosure Information. The Depositor will be responsible for any
reasonable expenses incurred by the Trustee and the Paying Agent in connection
with including any Form 8-K Disclosure Information on Form 8-K pursuant to this
paragraph.
After preparing the Form 8-K, the Paying Agent shall forward
electronically a copy of the Form 8-K to the Depositor for review no later than
noon on the 3rd Business Day after the Reportable Event, but in no event earlier
than 24 hours after having received the Form 8-K Disclosure Information pursuant
to the immediately preceding paragraph. Promptly, but no later than the close of
business on the third Business Day after the Reportable Event, the Depositor
shall notify the Paying Agent in writing (which may be furnished electronically)
of any changes to or approval of such Form 8-K. No later than noon on the 4th
Business Day after the Reportable Event, a duly authorized officer of the
Depositor shall sign the Form 8-K and return an electronic or fax copy of such
signed Form 8-K (with an original executed hard copy to follow by overnight
mail) to the Paying Agent. If a Form 8-K cannot be filed on time or if a
previously filed Form 8-K needs to be amended, the Paying Agent will follow the
procedures set forth in Section 11.03(b). Promptly after filing with the
Commission, the Paying Agent will, make available on its internet website a
final executed copy of each Form 8-K filed by the Paying Agent. The signing
party at the Depositor can be contacted at Xxxxxx Xxxxx, Vice President and
Secretary, X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (000) 000-0000,
with a copy to Xxxxxx Xxxxx, Vice President, X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, telecopy number: (000) 000-0000. The parties to this Agreement
acknowledge that the performance by the Paying Agent of its duties under this
Section 11.07 related to the timely preparation and filing of Form 8-K is
contingent upon such parties observing all applicable deadlines in the
performance of their duties under this Section 11.07. Neither the Trustee nor
the Paying Agent shall have any liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare, arrange for
execution and/or timely file such Form 8-K, where such failure results from the
Paying Agent's inability or failure to receive, on a timely basis, any
information from the parties to this Agreement needed to prepare, arrange for
execution or file such Form 8-K, not resulting from its own negligence, bad
faith or willful misconduct.
The Master Servicer, the Special Servicer, the Paying Agent and the
Trustee shall promptly notify (and the Master Servicer and the Special Servicer
shall (i) with respect to each Initial Sub-Servicer that is an Additional
Servicer engaged by such Master Servicer, Special Servicer, Trustee or Paying
Agent use commercially reasonable efforts to cause such Additional Servicer to
promptly notify and (ii) with respect to each other Additional Servicer with
which it has entered into a servicing relationship with respect to the Mortgage
Loans (other than a party to this Agreement) cause such Additional Servicer to
promptly notify) the Depositor and the Paying Agent, but in no event later than
noon on the 2nd Business Day after its occurrence, of any Reportable Event
applicable to such party to the extent a Regulation AB Servicing Officer or
Responsible Officer, as the case may be, has actual knowledge, in XXXXX
compatible format.
Section 11.08 Form 15 Filing. On or prior to January 30 of the first
year in which the Paying Agent is able to do so under applicable law, the Paying
Agent shall prepare and file a Form 15 Suspension Notification relating to the
automatic suspension of reporting in respect of the Trust under the Exchange
Act. If, after the filing of a Form 15 Suspension Notification, at the end of
any fiscal year for the Trust the number of Certificateholders of record exceeds
the number set forth in Section 15(d) of the Exchange Act or the regulations
promulgated pursuant thereto which would cause the Trust to again become subject
to the reporting requirements of the Exchange Act, the Paying Agent shall
recommence preparing and filing reports on Forms 10-K, 10-D and 8-K as required
pursuant to Section 11.04, Section 11.05 and Section 11.07; provided, that if
the Paying Agent re-commences the preparing and filing of Exchange Act reports,
it may, as soon as permitted by the Exchange Act, file another Form 15
Suspension Notification.
Section 11.09 Annual Compliance Statements. Each Master Servicer,
the Special Servicer, the Trustee and the Paying Agent (each, a "Certifying
Servicer") shall deliver to (and each such party shall (i) with respect to each
Additional Servicer engaged by such Master Servicer, Special Servicer, Trustee
or Paying Agent that is an Initial Sub-Servicer, use commercially reasonable
efforts to cause such Additional Servicer to deliver to and (ii) with respect to
each other Additional Servicer with which it has entered into a servicing
relationship with respect to the Mortgage Loans, cause such Additional Servicer
to deliver to) the Depositor and the Paying Agent on or before March 15 of each
year, commencing in March 2008, an Officer's Certificate, in the form attached
hereto as Exhibit EE, stating, as to the signer thereof, that (A) a review of
such Certifying Servicer's activities during the preceding calendar year or
portion thereof and of such Certifying Servicer's performance under this
Agreement, or the applicable sub-servicing agreement or primary servicing
agreement in the case of an Additional Servicer, has been made under such
officer's supervision and (B) to the best of such officer's knowledge, based on
such review, such Certifying Servicer has fulfilled all its obligations under
this Agreement, or the applicable sub-servicing agreement or primary servicing
agreement in the case of an Additional Servicer, in all material respects
throughout such year or portion thereof, or, if there has been a failure to
fulfill any such obligation in any material respect, specifying each such
failure known to such officer and the nature and status thereof. Such Officer's
Certificate shall be provided in XXXXX compatible format, or in such other
format agreed upon by the Depositor, the Paying Agent and such providing
parties. Each Master Servicer, the Special Servicer, the Trustee and the Paying
Agent shall, and each such party shall (i) with respect to each Additional
Servicer engaged by such Master Servicer, Special Servicer, Trustee or Paying
Agent that is an Initial Sub-Servicer, use commercially reasonable efforts to
cause such Additional Servicer, and (ii) with respect to each other Additional
Servicer with which it has entered into a servicing relationship with respect to
the Mortgage Loans, cause such Additional Servicer to forward a copy of each
such statement (or, in the case of the Trustee and the Paying Agent, make a copy
of each such statement available on its internet website) to the Rating Agencies
and the Directing Certificateholder. With respect to the 000 Xxxxxxxxx Xxxxxx
Companion Loans, the Paying Agent will use its reasonable efforts to procure
such Officer's Certificate from the 000 Xxxxxxxxx Xxxxxx Master Servicer, the
000 Xxxxxxxxx Xxxxxx Special Servicer, the 000 Xxxxxxxxx Xxxxxx Co-Trustee and
the 000 Xxxxxxxxx Xxxxxx Trustee in form and substance similar to the form
attached hereto as Exhibit EE. With respect to the AmeriCold Portfolio Companion
Loans, the Paying Agent will use its reasonable efforts to procure such
Officer's Certificate from the AmeriCold Portfolio Master Servicer, the
AmeriCold Portfolio Special Servicer, the AmeriCold Portfolio Primary Servicer
and the AmeriCold Portfolio Trustee in form and substance similar to the form
attached hereto as Exhibit EE. Promptly after receipt of each such Officer's
Certificate, the Depositor may review each such Officer's Certificate and, if
applicable, consult with any Master Servicer, the Special Servicer, the Trustee
or the Paying Agent, as applicable, as to the nature of any failures by such
Master Servicer, the Special Servicer, the Trustee or the Paying Agent,
respectively, or any related Additional Servicer with which the Master Servicer,
the Special Servicer, the Trustee or the Paying Agent, as applicable, has
entered into a servicing relationship with respect to the Mortgage Loans in the
fulfillment of any of the Master Servicer's, Special Servicer's, Trustee's and
Paying Agent's or Additional Servicer's obligations hereunder or under the
applicable sub-servicing or primary servicing agreement. The obligations of each
Master Servicer, the Special Servicer, the Trustee and the Paying Agent and each
Additional Servicer under this Section apply to each Master Servicer, the
Special Servicer, the Trustee and the Paying Agent and each Additional Servicer
that serviced a Mortgage Loan during the applicable period, whether or not each
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or
Additional Servicer is acting as the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent or Additional Servicer at the time such Officer's
Certificate is required to be delivered. None of the Master Servicer, Special
Servicer or Additional Servicer shall be required to cause the delivery of any
such statement (which delivery requirement will be deemed to have been satisfied
if such statement is made available by the applicable party on its website)
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.
Notwithstanding anything to the contrary contained in the
immediately preceding paragraph in this Section 11.09, with respect to each year
in which the Trust is not subject to the reporting requirements of the Exchange
Act, neither the Paying Agent nor the Trustee shall be required to deliver its
annual compliance statement set forth above in this Section 11.09.
In the event any Master Servicer, the Special Servicer, the Trustee
or the Paying Agent is terminated or resigns pursuant to the terms of this
Agreement, such party shall provide, and each Master Servicer and the Special
Servicer shall (i) with respect to an Initial Sub-Servicer engaged by such party
that is an Additional Servicer that resigns or is terminated under any
applicable servicing agreement, use its reasonable efforts to cause such
Additional Servicer to provide and (ii) with respect to any other Additional
Servicer engaged by such party that resigns or is terminated under any
applicable servicing agreement, cause such Additional Servicer to provide, an
annual statement of compliance pursuant to this Section 11.09 with respect to
the period of time that the Master Servicer, the Special Servicer, the Trustee
or the Paying Agent was subject to this Agreement or the period of time that
such Additional Servicer was subject to such other servicing agreement.
Section 11.10 Annual Reports on Assessment of Compliance with
Servicing Criteria. (a) On or before March 15 of each year, commencing in March
2008, each Master Servicer, the Special Servicer, the Trustee and the Paying
Agent, each at its own expense, shall furnish (and each such party shall (i)
with respect to each Initial Sub-Servicer engaged by such Master Servicer,
Special Servicer, Trustee or Paying Agent that is a Servicing Function
Participant, use commercially reasonable efforts to cause such Servicing
Function Participant to furnish and (ii) with respect to each other Servicing
Function Participant with which it has entered into a servicing relationship
with respect to the Mortgage Loans, cause such Servicing Function Participant to
furnish) to the Trustee, the Paying Agent and the Depositor, with a copy to the
Rating Agencies (which copy shall be deemed furnished by the Trustee and Paying
Agent when made available on its internet website), a report substantially in
the form of Exhibit FF or such other form provided by such Reporting Servicer
that complies in all material respects with the requirements of Item 1122 of
Regulation AB, on an assessment of compliance with the Servicing Criteria
applicable to it that contains (A) a statement by such Reporting Servicer of its
responsibility for assessing compliance with the Relevant Servicing Criteria,
(B) a statement that such Reporting Servicer used the Relevant Servicing
Criteria to assess compliance with the Relevant Servicing Criteria, (C) such
Reporting Servicer's assessment of compliance with the Relevant Servicing
Criteria as of and for the period ending the end of the fiscal year covered by
the Form 10-K required to be filed pursuant to Section 11.05, including, if
there has been any material instance of noncompliance with the Relevant
Servicing Criteria, a discussion of each such failure and the nature and status
thereof, and (D) a statement that a registered public accounting firm has issued
an attestation report on such Reporting Servicer's assessment of compliance with
the Relevant Servicing Criteria as of and for such period. With respect to the
000 Xxxxxxxxx Xxxxxx Companion Loans, the Paying Agent will use its reasonable
efforts to procure such report from the 000 Xxxxxxxxx Xxxxxx Master Servicer,
the 000 Xxxxxxxxx Xxxxxx Special Servicer, the 000 Xxxxxxxxx Xxxxxx Co-Trustee
and the 000 Xxxxxxxxx Xxxxxx Trustee in form and substance similar to the form
attached hereto as Exhibit FF. With respect to the AmeriCold Portfolio Companion
Loans, the Paying Agent will use its reasonable efforts to procure such report
from the AmeriCold Portfolio Master Servicer, the AmeriCold Portfolio Special
Servicer, the AmeriCold Portfolio Primary Servicer and the AmeriCold Portfolio
Trustee in form and substance similar to the form attached hereto as Exhibit FF.
Such report shall be provided in XXXXX compatible format, or in such other
format agreed upon by the Depositor, the Paying Agent and the Reporting
Servicer.
Notwithstanding anything to the contrary contained in the
immediately preceding paragraph in this Section 11.10, with respect to each year
in which the Trust is not subject to the reporting requirements of the Exchange
Act, neither the Paying Agent nor the Trustee shall be required to deliver its
report on an assessment of compliance set forth above in this Section 11.10.
Each such report shall be addressed to the Depositor and signed by
an authorized officer of the applicable company, and shall address the Relevant
Servicing Criteria specified on a certification substantially in the form of
Exhibit X hereto delivered to the Depositor on the Closing Date. Promptly after
receipt of each such report, (i) the Depositor may review each such report and,
if applicable, consult with each Reporting Servicer as to the nature of any
material instance of noncompliance with the Servicing Criteria applicable to it
(and each Servicing Function Participant engaged or utilized by each Reporting
Servicer, as applicable), and (ii) the Trustee shall confirm that the
assessments taken individually address the Relevant Servicing Criteria for each
party as set forth on Exhibit X and notify the Depositor of any exceptions. None
of the Master Servicer, the Special Servicer, the Paying Agent, the Trustee or
any Servicing Function Participant shall be required to cause the delivery of
any such assessments (which delivery requirement will be deemed to have been
satisfied if such assessments are made available by the applicable party on its
website) until April 15 in any given year so long as it has received written
confirmation from the Depositor that a report on Form 10-K is not required to be
filed in respect of the Trust for the preceding calendar year.
(b) Each Master Servicer, the Special Servicer, the Trustee and the
Paying Agent and any Servicing Function Participant with which any Master
Servicer, Special Servicer, Trustee or Paying Agent has entered into a servicing
relationship hereby acknowledge and agree that the Relevant Servicing Criteria
set forth on Exhibit X is appropriately set forth with respect to such party.
(c) No later than 10 Business Days after the end of each fiscal year
for the Trust, 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-Servicers, and the Trustee and the Paying
Agent shall notify the Depositor as to the name of each Servicing Function
Participant utilized by it, in each case by providing an updated Exhibit DD, and
each such notice will specify what specific Servicing Criteria will be addressed
in the report on assessment of compliance prepared by such Servicing Function
Participant. When the Master Servicer, the Special Servicer, the Trustee and the
Paying Agent submit their assessments pursuant to Section 11.10(a), the Master
Servicer, the Special Servicer, the Trustee and the Paying Agent, as applicable,
will also at such time include the assessment (and related attestation pursuant
to Section 11.11) of each Servicing Function Participant engaged by it.
In the event any Master Servicer, the Special Servicer or the
Trustee is terminated or resigns pursuant to the terms of this Agreement, such
party shall provide, and each such party shall cause any Servicing Function
Participant engaged by it to provide (and each Master Servicer and the Special
Servicer shall (i) with respect to an Initial Sub-Servicer engaged by such
Master Servicer or Special Servicer that is an Additional Servicer that resigns
or is terminated under any applicable servicing agreement, use its reasonable
efforts to cause such Additional Servicer and (ii) with respect to any other
Additional Servicer that resigns or is terminated under any applicable servicing
agreement, cause such Additional Servicer to provide) an annual assessment of
compliance pursuant to this Section 11.10, coupled with an attestation as
required in Section 11.11 with respect to the period of time that the Master
Servicer, the Special Servicer, the Trustee or the Paying Agent was subject to
this Agreement or the period of time that the Additional Servicer was subject to
such other servicing agreement.
Section 11.11 Annual Independent Public Accountants' Attestation
Report. On or before March 15 of each year, commencing in March 2008, each
Master Servicer, the Special Servicer, the Trustee and the Paying Agent, each at
its own expense, shall cause (and the Master Servicer, the Special Servicer, the
Trustee and the Paying Agent shall (i) with respect to each Initial Sub-Servicer
engaged by such Master Servicer, Special Servicer, Trustee or Paying Agent that
is a Servicing Function Participant use commercially reasonable efforts to cause
such Servicing Function Participant to cause and (ii) with respect to each other
Servicing Function Participant with which it has entered into a servicing
relationship with respect to the Mortgage Loans cause such Servicing Function
Participant to cause) a registered public accounting firm (which may also render
other services to each Master Servicer, the Special Servicer, the Trustee, the
Paying Agent or the applicable Servicing Function Participant, as the case may
be) and that is a member of the American Institute of Certified Public
Accountants to furnish a report to the Trustee, the Paying Agent and the
Depositor, with a copy to the Rating Agencies and the Directing
Certificateholder (which copy shall be deemed furnished by the Trustee and
Paying Agent when made available on its internet website), to the effect that
(i) it has obtained a representation regarding certain matters from the
management of such Reporting Servicer, which includes an assertion that such
Reporting Servicer has complied with the Relevant Servicing Criteria applicable
to it and (ii) on the basis of an examination conducted by such firm in
accordance with standards for attestation engagements issued or adopted by the
PCAOB, it is issuing an opinion as to whether such Reporting Servicer's
assessment of compliance with the Relevant Servicing Criteria applicable to it
was fairly stated in all material respects. In the event that an overall opinion
cannot be expressed, such registered public accounting firm shall state in such
report why it was unable to express such an opinion. Each such related
accountant's attestation report shall be made in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act. Such report must be available for general use and not contain
restricted use language. With respect to the 000 Xxxxxxxxx Xxxxxx Companion
Loans, the Paying Agent will use its reasonable efforts to procure such report
from the 000 Xxxxxxxxx Xxxxxx Master Servicer, the 000 Xxxxxxxxx Xxxxxx Special
Servicer, the 000 Xxxxxxxxx Xxxxxx Co-Trustee and the 000 Xxxxxxxxx Xxxxxx
Trustee. With respect to the AmeriCold Portfolio Companion Loans, the Paying
Agent will use its reasonable efforts to procure such report from the AmeriCold
Portfolio Master Servicer, the AmeriCold Portfolio Special Servicer, the
AmeriCold Portfolio Primary Servicer and the AmeriCold Portfolio Trustee. Such
reports shall be provided in XXXXX compatible format, or in such other format
agreed upon by the Depositor, the Paying Agent and the providing parties.
Promptly after receipt of such report from each Master Servicer, the
Special Servicer, the Trustee, the Paying Agent or any Servicing Function
Participant, (i) the Depositor may review the report and, if applicable, consult
with each Master Servicer, the Special Servicer, the Trustee or the Paying Agent
as to the nature of any defaults by each Master Servicer, the Special Servicer,
the Trustee or any Servicing Function Participant with which it has entered into
a servicing relationship with respect to the Mortgage Loans, as the case may be,
in the fulfillment of any of the Master Servicers', the Special Servicer's, the
Trustee's, the Paying Agent's or the applicable Servicing Function Participants'
obligations hereunder or under the applicable sub-servicing or primary servicing
agreement, and (ii) the Trustee shall confirm that each accountants' attestation
report submitted pursuant to this Section relates to an assessment of compliance
meeting the requirements of Section 11.10 and notify the Depositor of any
exceptions. None of the Master Servicers, the Special Servicer, the Trustee, the
Paying Agent nor any Additional Servicer shall be required to deliver, or shall
be required to cause the delivery of, (which delivery requirement will be deemed
to have been satisfied if such reports are made available by the applicable
party on its website) such reports until April 15 in any given year so long as
it has received written confirmation from the Depositor that a Form 10-K is not
required to be filed with respect to the Trust for the preceding fiscal year.
For the avoidance of doubt, with respect to each year in respect of
which the Paying Agent, on behalf of the Trust, is not subject to the reporting
requirements of the Exchange Act, neither the Paying Agent nor the Trustee shall
be required to deliver the accountant's report for itself set forth above.
Section 11.12 Indemnification. Each of the Master Servicers, the
Special Servicer, the Trustee and the Paying Agent shall indemnify and hold
harmless each Certification Party from and against any claims, losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments and other costs and expenses incurred by such Certification Party
arising out of (i) an actual breach by the Master Servicers, the Special
Servicer, the Trustee or the Paying Agent, as the case may be, of its
obligations under this Article XI or (ii) negligence, bad faith or willful
misconduct on the part of the Master Servicers, the Special Servicer, the
Trustee or the Paying Agent in the performance of such obligations.
Each Master Servicer, the Special Servicer, the Trustee and the
Paying Agent shall (i) with respect to any Initial Sub-Servicer engaged by such
Master Servicer, Special Servicer, Trustee or Paying Agent that is a Servicing
Function Participant or Additional Servicer, use commercially reasonable efforts
to cause such party to and (ii) with respect to each other Additional Servicer
and each Servicing Function Participant with which, in each case, it has entered
into a servicing relationship with respect to the Mortgage Loans to cause such
party to indemnify and hold harmless each Certification Party from and against
any and all claims, losses, damages, penalties, fines, forfeitures, legal fees
and expenses and related costs, judgments and any other costs, fees and expenses
incurred by such Certification Party arising out of (i) a breach of its
obligations to provide any of the annual compliance statements or annual
assessment of compliance reports or attestation reports pursuant to the
applicable sub-servicing or primary servicing agreement or (ii) negligence, bad
faith or willful misconduct on its part in the performance of such obligations
or (iii) any failure by a Servicer (as defined in Section 11.02(b)) to identify
a Servicing Function Participant pursuant to Section 11.02(c).
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Party, then each Master
Servicer, the Special Servicer, the Trustee or the Paying Agent (the "Performing
Party") shall contribute to the amount paid or payable to the Certification
Party as a result of the losses, claims, damages or liabilities of the
Certification Party in such proportion as is appropriate to reflect the relative
fault of the Certification Party on the one hand and the Performing Party on the
other in connection with a breach of the Performing Party's obligations pursuant
to Sections 11.06, 11.09, 11.10 or 11.11 (or breach of its obligations under the
applicable sub-servicing or primary servicing agreement to provide any of the
annual compliance statements or annual servicing criteria compliance reports or
attestation reports) or the Performing Party's negligence, bad faith or willful
misconduct in connection therewith. Each Master Servicer, the Special Servicer,
the Trustee and the Paying Agent shall (i) with respect to any Initial
Sub-Servicer engaged by such Master Servicer, Special Servicer, Trustee or
Paying Agent that is a Servicing Function Participant or Additional Servicer,
use commercially reasonable efforts to cause such party to and (ii) with respect
to each other Additional Servicer or Servicing Function Participant, in each
case, with which it has entered into a servicing relationship with respect to
the Mortgage Loans cause such party to agree to the foregoing indemnification
and contribution obligations. This Section 11.12 shall survive the termination
of this Agreement or the earlier resignation or removal of any Master Servicer,
the Special Servicer, the Trustee or the Paying Agent.
Section 11.13 Amendments. This Article XI may be amended by the
parties hereto pursuant to Section 12.01 for purposes of complying with
Regulation AB and/or to conform to standards developed within the commercial
mortgage-backed securities market and the Xxxxxxxx-Xxxxx Act without any
Opinions of Counsel, Officer's Certificates, Rating Agency confirmations 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.
Section 11.14 Regulation AB Notices. Any notice required to be
delivered by the Paying Agent or the Trustee, as the case may be, to the
Depositor pursuant to this Article XI may be delivered via email (and
additionally delivered via phone or telecopy), notwithstanding the provisions of
Section 12.05, to X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx, telecopy number:
000-000-0000, telephone number: 000-000-0000 and email:
Xxxxxx.x.xxxxx@xxxxxxxx.xxx, with a copy to Xxxxxx Xxxxx, Vice President and
Secretary, X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (000) 000-0000,
telephone number: 000-000-0000 and email: Xxxxx_xxxxxx@xxxxxxxx.xxx.
[End of Article XI]
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment. (a) This Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders or the Companion Holders:
(i) to cure any ambiguity to the extent that it does not materially
and adversely affect any Certificateholder or Companion Holder;
(ii) to cause the provisions in this Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus
with respect to the Certificates, the Trust or this Agreement or to
correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of
any Certificateholder or Companion Holder;
(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust
Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC,
at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would
be a claim against the Trust Fund or either of the Lower-Tier REMIC or the
Upper-Tier REMIC, provided that the Trustee has received an Opinion of
Counsel (at the expense of the party requesting such amendment) to the
effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any
such tax and (b) such action will not adversely affect in any material
respect the interests of any Certificateholder or any Companion Holder;
(iv) to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided
that (a) the P&I Advance Date shall in no event be later than the Business
Day prior to the related Distribution Date, (b) such change shall not, as
evidenced by an Opinion of Counsel (at the expense of the party requesting
such amendment or at the expense of the Trust Fund if the requesting party
is the Trustee or the Paying Agent), adversely affect in any material
respect the interests of any Certificateholder or any Companion Holder and
(c) such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such
effect;
(v) to modify, eliminate or add to the provisions of Section 5.02(c)
or any other provision hereof restricting transfer of the Residual
Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC
or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person;
(vi) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such
action shall not, (x) as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto and (y) result in the downgrade,
withdrawal or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each Rating Agency 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 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 o, as
evidenced by a letter from each Rating Agency to such effect; and
(viii) to modify the provisions of Sections 3.05 and 3.19 (with
respect to reimbursement of Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts) if (a) the Depositor, the Master Servicer, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (b) such
modification does not adversely affect the status of the Upper-Tier REMIC
or the Lower-Tier REMIC as a REMIC, 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;
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 66(2)/3% of the Percentage Interests of each Class of Certificates
affected thereby for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Holders of Certificates of such Class; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
(vi) significantly change the activities of the Trust (insofar as
such changes would adversely affect the status of the Trust as a
"qualifying special purpose entity" under FASB 140) without the consent of
the Holders of Certificates entitled to not less than 51% of all the
Voting Rights (without regard to Certificates held by the Depositor, any
Mortgage Loan Seller or any Affiliates and/or agents of the Depositor or
any Mortgage Loan Seller).
(c) Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master 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 Paying Agent or any other specified person in accordance with such
amendment will not result in the imposition of a tax on any portion of the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC cause the Lower-Tier REMIC or
the Upper-Tier REMIC to fail to qualify as a REMIC.
(d) Promptly after the execution of any such amendment, the Paying
Agent shall furnish a statement describing the amendment to each
Certificateholder and the Trustee and shall furnish a copy of such amendment to
each Rating Agency.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 12.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Paying Agent may prescribe.
(f) The Trustee shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 12.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer or the Trustee requests any
amendment of this Agreement in furtherance of the rights and interests of
Certificateholders, the cost of any Opinion of Counsel required in connection
therewith pursuant to Section 12.01(a) or (c) shall be payable out of the
Certificate Account.
(h) The Servicing Standards shall not be amended unless each Rating
Agency provides a written confirmation that such amendment would not cause a
downgrading, qualification or withdrawal of the then current ratings assigned to
any of the Certificates.
(i) Notwithstanding any other provision of this Agreement (other
than the next succeeding sentence), for purposes of the giving or withholding of
consents pursuant to this Section 12.01, Certificates registered in the name of
the Depositor or any Affiliate of the Depositor shall be entitled to the same
Voting Rights with respect to matters described above as they would if any other
Person held such Certificates, so long as neither the Depositor nor any of its
Affiliates is performing servicing duties with respect to any of the Mortgage
Loans. Any amendment contemplated by this Section 12.01 that adversely affects
the status of the Trust Fund as a "qualifying special purpose entity" under FASB
140 shall require consent of the Holders of Certificates entitled to at least
51% of the Voting Rights (without regard to Certificates held by the Depositor,
any Affiliate and/or agents of the Depositor, any Mortgage Loan Seller or any
Affiliate and/or agents of any Mortgage Loan Seller).
Section 12.02 Recordation of Agreement; Counterparts. (a) To the
extent permitted by applicable law, this Agreement is subject to recordation in
all appropriate public offices for real property records in all the counties or
other comparable jurisdictions in which any or all of the properties subject to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Trustee at the expense of
the Depositor on direction by the Special Servicer and with the consent of the
Depositor (which may not be unreasonably withheld), but only upon direction
accompanied by an Opinion of Counsel (the cost of which shall be paid by the
Depositor) to the effect that such recordation materially and beneficially
affects the interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
(c) The Trustee shall make any filings required under the laws of
the state of its place of business required solely by virtue of the fact of the
location of the Trustee's place of business, the costs of which, if any, to be
at the Trustee's expense.
Section 12.03 Limitation on Rights of Certificateholders. (a) The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee and the Paying Agent a written notice of default hereunder, and of the
continuance thereof, as herein before provided, and unless also (except in the
case of a default by the Trustee) the Holders of Certificates of any Class
evidencing not less than 25% of the related Percentage Interests in such Class
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. The
Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of the
Holders of Certificates unless such Holders have offered to the Trustee
reasonable security against the costs, expenses and liabilities which may be
incurred therein or hereby. It is understood and intended, and expressly
covenanted by each Certificateholder with every other Certificateholder and the
Trustee, that no one or more Holders of Certificates shall have any right in any
manner whatsoever by virtue of any provision of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, which priority or preference is not otherwise provided for
herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 12.03(c), each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 12.04 Governing Law. This Agreement and the Certificates
shall be construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in said State, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Section 12.05 Notices. Any communications provided for or permitted
hereunder shall be in writing and, unless otherwise expressly provided herein,
shall be deemed to have been duly given if personally delivered at or couriered,
sent by facsimile transmission or mailed by registered mail, postage prepaid
(except for notices to a Mortgage Loan Seller, the Master Servicer and the
Trustee which shall be deemed to have been duly given only when received), to:
(i) in the case of the Depositor, X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxx, Vice President, telecopy number: (000) 000-0000, with a
copy to X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxx, Managing
Director and Associate General Counsel, telecopy number: (000) 000-0000; (ii) in
the case of the Master Servicer No. 1, Capmark Finance Inc., 000 Xxxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Managing Director, Servicing Operations,
telecopy number: (000) 000-0000; (iii) in the case of the Master Servicer No. 2,
Xxxxx Fargo Bank, N.A., 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000, Attention: Commercial Mortgage Servicing (with a copy to Xxxxxx X.
Xxxxxxx, Esq., Xxxxx Fargo Bank, National Association, 000 Xxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, telecopy number: (000) 000-0000; (iv) in
the case of the Special Servicer, LNR Partners, Inc., 0000 Xxxxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxx Xxxxx, Xxxxxxx 00000; Attention: Xxxxx Xxxxxxx and Xxxxxx X.
Xxxxxx III, Esq., telecopy number: (000) 000 0000 and Attention: Xxxxxx Xxxxxxx,
telecopy number: (000) 000-0000, with copies to Bilzin Xxxxxxx Xxxxx Price &
Xxxxxxx, LLP, 000 X. Xxxxxxxx Xxxx., Xxxxx 0000, Xxxxx, Xxxxxxx 00000,
Attention: Xxxx Xxxxx, Esq., telecopy number: (000) 000-0000; (v) in the case of
the Directing Certificateholder, CRES Investment NO. I, LP, c/o Presidio
Investments, Ltd., 0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000, Attention: Xxxxxxx X. Xxxxxx, President & CEO, telecopy number: (214)
691-1930, with a copy to Xxxx Xxxxxx, Presidio Investments, Ltd., 0000 Xxxxx
Xxxxxxx Xxxxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, Attention: Xxxxxxx X.
Xxxxxx, President & CEO, telecopy number: (000) 000-0000; (vi) in the case of
the Trustee and the Paying Agent, LaSalle Bank National Association, 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global
Securities and Trust Services - X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Trust Series 2007-CIBC19, telecopy number: (000) 000-0000; (vii) in the case of
the Rating Agencies, (a) S&P Ratings Services, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000, Attention: CMBS Surveillance Group, telecopy number: (212)
438-2662; and (b) Xxxxx'x Investors Services, Inc., 00 Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial Mortgage Surveillance Group,
telecopy number: (000) 000-0000; (viii) in the case of the Mortgage Loan
Sellers, (a) JPMorgan Chase Bank, National Association, 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxxxxxxxx: Xxxxxx Xxxxx, Vice President, telecopy number: (000) 000-0000;
and (b) CIBC Inc., 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Real Estate Finance Group, telecopy number: (000) 000-0000; and (ix)
in the case of any Companion Holder or any mezzanine lender, the address set
forth in the related Intercreditor Agreement; or, as to each such Person, such
other address as may hereafter be furnished by such Person to the parties hereto
in writing. Any communication required or permitted to be delivered to a
Certificateholder shall be deemed to have been duly given when mailed first
class, postage prepaid, to the address of such Holder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the Certificateholder receives such notice.
Section 12.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 12.07 Grant of a Security Interest. The Depositor intends
that the conveyance of the Depositor's right, title and interest in and to the
Mortgage Loans pursuant to this Agreement shall constitute a sale and not a
pledge of security for a loan. If such conveyance is deemed to be a pledge of
security for a loan, however, the Depositor intends that the rights and
obligations of the parties to such loan shall be established pursuant to the
terms of this Agreement. The Depositor also intends and agrees that, in such
event, (i) the Depositor shall be deemed to have granted to the Trustee (in such
capacity) a first priority security interest in the Depositor's entire right,
title and interest in and to the assets comprising the Trust Fund, including
without limitation, the Mortgage Loans, all principal and interest received or
receivable with respect to the Mortgage Loans (other than principal and interest
payments due and payable prior to the Cut-off Date and Principal Prepayments
received prior to the Cut-off Date), all amounts held from time to time in the
Certificate 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 12.07 shall
constitute notice to the Trustee pursuant to any of the requirements of the
applicable UCC.
Section 12.08 Successors and Assigns; Third Party Beneficiaries. (a)
The provisions of this Agreement shall be binding upon and inure to the benefit
of the respective successors and assigns of the parties hereto, and all such
provisions shall inure to the benefit of the Certificateholders. Each Mortgage
Loan Seller and each Companion Holder (and their agents) is an intended
third-party beneficiary to this Agreement in respect of the respective rights
afforded it hereunder. No other person, including, without limitation, any
Mortgagor, shall be entitled to any benefit or equitable right, remedy or claim
under this Agreement.
(b) Each of the 000 Xxxxxxxxx Xxxxxx Trustee, the 000 Xxxxxxxxx
Xxxxxx Co-Trustee, 000 Xxxxxxxxx Xxxxxx Master Servicer and 000 Xxxxxxxxx Xxxxxx
Special Servicer in respect to the 000 Xxxxxxxxx Xxxxxx Companion Loans shall be
a third-party beneficiary to this Agreement in respect to its rights as
specifically provided for herein and under the 000 Xxxxxxxxx Xxxxxx
Intercreditor Agreement.
(c) Each of the AmeriCold Portfolio Trustee, AmeriCold Portfolio
Master Servicer, AmeriCold Portfolio Special Servicer and AmeriCold Portfolio
Primary Servicer in respect to the AmeriCold Portfolio Companion Loans shall be
a third-party beneficiary to this Agreement in respect to its rights as
specifically provided for herein and under the AmeriCold Portfolio Intercreditor
Agreement.
Section 12.09 Article and Section Headings. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 12.10 Notices to the Rating Agencies. (a) The Trustee shall
use reasonable efforts promptly to provide notice to each Rating Agency with
respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Paying Agent, 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 Servicer and the
Special Servicers shall promptly furnish to each Rating Agency 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 Paying Agent shall promptly furnish notice to the Rating
Agencies of (i) any change in the location of the Distribution Accounts and (ii)
the final payment to any Class of Certificateholders.
(e) The Trustee, the Paying Agent, each Master Servicer and the
Special Servicer, as applicable, shall furnish to each Rating Agency with
respect to each Mortgage Loan such information as the Rating Agency shall
reasonably request and which the Trustee, the Paying Agent, 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, 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/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
CAPMARK FINANCE INC.,
Master Servicer No. 1
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXX FARGO BANK, N.A.,
Master Servicer No. 2
By /s/ Xxxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President
LNR PARTNERS, INC.,
Special Servicer
By /s/ Xxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
Trustee and Paying Agent
By /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 11th day of June, 2007, before me, a notary public in and for
said State, personally appeared Xxxxx Xxxxx known to me to be a Vice President
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:
02/04/10
----------------------
COMMONWEALTH OF PENNSYLVANIA )
) ss.:
COUNTY OF XXXXXXXXXX )
On the 9th day of June, 2007, before me, a notary public in and for
said State, personally appeared Xxxxxxx X. Xxxxxxx known to me to be a Vice
President of Capmark Finance 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/ Xxxxxxxxx X. Xxxxxxxxxx
----------------------------
Notary Public
[SEAL]
My commission expires:
January 1, 0000
----------------------
XXXXX XX XXXXXXXXXX )
) ss.:
COUNTY OF SAN FRANCISCO )
On June 11, 2007, before me, Xxxx Xxxxxx, Notary Public, personally appeared
Kristian X.X. Xxxxxxxxx, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxx X. Xxxxxx
----------------------------
Notary Public
[SEAL]
My commission expires:
December 3, 2010
----------------------
STATE OF FLORIDA )
) ss.:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 13 day of June, 2007,
by Xxxxxxxx X. Xxxxxxx, as Vice President on behalf of LNR Partners, Inc., a
Florida corporation; such individual is personally known to me or has produced a
driver's license as identification.
/s/ Davika Xxxxxxxx Xxxxx
-------------------------------
Print Name: Davika Xxxxxxxx Xxxxx
Notary Public, State of Florida
[SEAL]
My commission expires:
February 19, 0000
----------------------
XXXXX XX XXXXXXXX )
) ss.:
COUNTY OF XXXX )
On the 14th day of June, 2007, before me, a notary public in and for
said State, personally appeared Xxxxxxx X. Xxxxxxxxx known to me to be a AVP 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/ Xxxxxx Xxx
----------------------------
Notary Public
[SEAL]
My commission expires:
9/21/2009
----------------------
EXHIBIT A-1
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS A-1
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.5380% MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
BANK, N.A.
DENOMINATION: $52,983,000
SPECIAL SERVICER: LNR PARTNERS, INC.
DATE OF POOLING AND SERVICING AGREEMENT: AS OF
JUNE 14, 2007 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
SERVICING AGREEMENT (AS DEFINED HEREIN)
CUSIP NO.: 46630V AA 0
CLOSING DATE: JUNE 14, 2007
ISIN NO.: US46630VAA08
FIRST DISTRIBUTION DATE:
JULY 12, 2007 COMMON CODE NO.: 30629752
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-1-[--]
CERTIFICATE BALANCE
OF THE CLASS A-1 CERTIFICATES
AS OF THE CLOSING DATE: $52,983,000
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 Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-1 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-2
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS A-2
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.8150%, SUBJECT TO A MAXIMUM MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
RATE AS DESCRIBED IN THE POOLING AND SERVICING BANK, N.A.
AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $151,614,000
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE
14, 2007 PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND CUSIP NO.: 46630V AB 8
SERVICING AGREEMENT (AS DEFINED HEREIN)
ISIN NO.: US46630VAB80
CLOSING DATE: JUNE 14, 2007
COMMON CODE NO.: 30629825
FIRST DISTRIBUTION DATE:
JULY 12, 2007 CERTIFICATE NO.: A-2-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-2 CERTIFICATES
AS OF THE CLOSING DATE: $151,614,000
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-2 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-2 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-2 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-3
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS A-3
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN ACCORDANCE WITH MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
THE POOLING AND SERVICING AGREEMENT BANK, N.A.
DENOMINATION: $180,000,000 SPECIAL SERVICER: LNR PARTNERS, INC.
DATE OF POOLING AND SERVICING AGREEMENT: AS OF TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
JUNE 14, 2007
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT (AS DEFINED HEREIN) CUSIP NO.: 46630V AC 6
CLOSING DATE: JUNE 14, 2007 ISIN NO.: US46630VAC63
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 30629906
JULY 12, 2007
CERTIFICATE NO.: A-3-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-3 CERTIFICATES
AS OF THE CLOSING DATE: $180,000,000
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 Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-3 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-3 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-3 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-3 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-4
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS A-4
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN ACCORDANCE WITH THE MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
POOLING AND SERVICING AGREEMENT BANK, N.A.
DENOMINATION: $[500,000,000] [500,000,000] SPECIAL SERVICER: LNR PARTNERS, INC.
[195,030,000]
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE
14, 2007 PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND CUSIP NO.: 46630V AD 4
SERVICING AGREEMENT (AS DEFINED HEREIN)
ISIN NO.: US46630VAD47
CLOSING DATE: JUNE 14, 2007
COMMON CODE NO.: 30630084
FIRST DISTRIBUTION DATE:
JULY 12, 2007 CERTIFICATE NO.: A-4-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-4 CERTIFICATES
AS OF THE CLOSING DATE: $1,195,030,000
CLASS A-4 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-4 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-4 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-4 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-4 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-5
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS A-SB
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN ACCORDANCE WITH THE MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
POOLING AND SERVICING AGREEMENT BANK, N.A.
DENOMINATION: $117,589,000 SPECIAL SERVICER: LNR PARTNERS, INC.
DATE OF POOLING AND SERVICING AGREEMENT: AS OF JUNE TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
14, 2007
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT (AS DEFINED HEREIN) CUSIP NO.: 46630V AE 2
CLOSING DATE: JUNE 14, 2007 ISIN NO.: US46630VAE20
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 30630157
JULY 12, 2007
CERTIFICATE NO.: A-SB-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-SB CERTIFICATES
AS OF THE CLOSING DATE: $117,589,000
CLASS A-SB CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-SB Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-SB Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-SB Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-SB Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated:______June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-SB CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-6
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS A-1A
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN ACCORDANCE WITH THE MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
POOLING AND SERVICING AGREEMENT BANK, N.A.
DENOMINATION: $[500,000,000] [95,708,000] SPECIAL SERVICER: LNR PARTNERS, INC.
DATE OF POOLING AND SERVICING AGREEMENT: AS OF TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
JUNE 14, 2007
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT (AS DEFINED HEREIN) CUSIP NO.: 46630V AF 9
CLOSING DATE: JUNE 14, 2007 ISIN NO.: US46630VAF94
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 30630238
JULY 12, 2007
CERTIFICATE NO.: A-1A-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-1A CERTIFICATES
AS OF THE CLOSING DATE: $595,708,000
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 Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1A Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1A Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1A Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-1A Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1A CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-7
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, 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 ACCORDANCE WITH MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
THE POOLING AND SERVICING AGREEMENT BANK, N.A.
DENOMINATION: $[500,000,000] [500,000,000] SPECIAL SERVICER: LNR PARTNERS, INC.
[500,000,000] [500,000,000] [500,000,000]
[500,000,000] [275,606,503] TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
JUNE 14, 2007
CUSIP NO.: 46630V AG 7
CUT-OFF DATE: AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT (AS DEFINED HEREIN) ISIN NO.: US46630VAG77
CLOSING DATE: JUNE 14, 2007 COMMON CODE NO.: 30630467
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: X-[--]
JULY 12, 2007
APPROXIMATE AGGREGATE NOTIONAL AMOUNT OF THE
CLASS X CERTIFICATES
AS OF THE CLOSING DATE: $3,275,606,503
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 Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class X Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 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 Special Servicer
and the Master Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC19 and are issued
in the classes as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
This Class X Certificate has no principal balance and will not
receive any distribution of principal.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date Class X Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount, and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-8
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS A-M
THIS CLASS A-M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN ACCORDANCE WITH THE MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
POOLING AND SERVICING AGREEMENT BANK, N.A.
DENOMINATION: $327,561,000 SPECIAL SERVICER: LNR PARTNERS, INC.
DATE OF POOLING AND SERVICING AGREEMENT: AS OF TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
JUNE 14, 2007
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT (AS DEFINED HEREIN) CUSIP NO.: 46630V AJ 1
CLOSING DATE: JUNE 14, 2007 ISIN NO.: US46630VAJ17
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 30630521
JULY 12, 2007
CERTIFICATE NO.: A-M-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-M CERTIFICATES
AS OF THE CLOSING DATE: $327,561,000
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 Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-M Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-M Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-M Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-M Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-9
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS A-J
THIS CLASS A-J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN ACCORDANCE WITH THE MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
POOLING AND SERVICING AGREEMENT BANK, N.A.
DENOMINATION: $262,048,000 SPECIAL SERVICER: LNR PARTNERS, INC.
DATE OF POOLING AND SERVICING AGREEMENT: AS OF TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
JUNE 14, 2007
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT (AS DEFINED HEREIN) CUSIP NO.: 46630V AL 6
CLOSING DATE: JUNE 14, 2007 ISIN NO.: US46630VAL62
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 30630599
JULY 12, 2007
CERTIFICATE NO.: A-J-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-J CERTIFICATES
AS OF THE CLOSING DATE: $262,048,000
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 Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-J Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-J Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-J Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-10
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS B
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN ACCORDANCE WITH THE MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
POOLING AND SERVICING AGREEMENT BANK, N.A.
DENOMINATION: $24,567,000 SPECIAL SERVICER: LNR PARTNERS, INC.
DATE OF POOLING AND SERVICING AGREEMENT: AS OF TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
JUNE 14, 2007
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT (AS DEFINED HEREIN) CUSIP NO.: 46630V AN 2
CLOSING DATE: JUNE 14, 2007 ISIN NO.: US46630VAN29
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 30630645
JULY 12, 2007
CERTIFICATE NO.: B-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS B CERTIFICATES
AS OF THE CLOSING DATE: $24,567,000
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 Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class B Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class B
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class B Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class B Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-11
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS C
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN ACCORDANCE WITH THE MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
POOLING AND SERVICING AGREEMENT BANK, N.A.
DENOMINATION: $36,851,000 SPECIAL SERVICER: LNR PARTNERS, INC.
DATE OF POOLING AND SERVICING AGREEMENT: AS OF TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
JUNE 14, 2007
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT (AS DEFINED HEREIN) CUSIP NO.: 46630V AP 7
CLOSING DATE: JUNE 14, 2007 ISIN NO.: US46630VAP76
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 30630696
JULY 12, 2007
CERTIFICATE NO.: C-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS C CERTIFICATES
AS OF THE CLOSING DATE: $36,851,000
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 Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class C Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class C
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class C Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class C Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-12
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS D
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN ACCORDANCE WITH THE MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
POOLING AND SERVICING AGREEMENT BANK, N.A.
DENOMINATION: $32,756,000 SPECIAL SERVICER: LNR PARTNERS, INC.
DATE OF POOLING AND SERVICING AGREEMENT: AS OF TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
JUNE 14, 2007
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT (AS DEFINED HEREIN) CUSIP NO.: 46630V AQ 5
CLOSING DATE: JUNE 14, 2007 ISIN NO.: US46630VAQ59
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 30630777
JULY 12, 2007
CERTIFICATE NO.: D-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS D CERTIFICATES
AS OF THE CLOSING DATE: $32,756,000
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 Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class D Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class D
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class D Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class D Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-13
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS E
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN ACCORDANCE WITH MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
THE POOLING AND SERVICING AGREEMENT BANK, N.A.
DENOMINATION: $49,134,000 SPECIAL SERVICER: LNR PARTNERS, INC.
DATE OF POOLING AND SERVICING AGREEMENT: AS OF TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
JUNE 14, 2007
PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT (AS DEFINED HEREIN) CUSIP NO.: 46630V AR 3
CLOSING DATE: JUNE 14, 2007 ISIN NO.: US46630VAR33
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 30630815
JULY 12, 2007
CERTIFICATE NO.: E-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS E CERTIFICATES
AS OF THE CLOSING DATE: $49,134,000
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 Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class E Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class E
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class E Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class E Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-14
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS F
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN ACCORDANCE WITH THE MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
POOLING AND SERVICING AGREEMENT BANK, N.A.
DENOMINATION: $36,851,000 OR AS OTHERWISE SET SPECIAL SERVICER: LNR PARTNERS, INC.
FORTH ON SCHEDULE A HERETO
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF
JUNE 14, 2007 PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE POOLING AND CUSIP NO.: U48072 AB 5(1), 46630V AS 1(2), 46630V BF
SERVICING AGREEMENT (AS DEFINED HEREIN) 8(3)
CLOSING DATE: JUNE 14, 2007 ISIN NO.: USU48072AB51(1), US46630VAS16(2),
US46630VBF85(3)
FIRST DISTRIBUTION DATE:
JULY 12, 2007 COMMON CODE NO.: 30632494(1), 30630912(2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: F-[--]
CERTIFICATE BALANCE
OF THE CLASS F CERTIFICATES
AS OF THE CLOSING DATE: $36,851,000
--------------------------------------------------
(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 Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class F Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class F
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class F Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class F Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Certificate Balance Notation
Date Book-Entry Certificate of Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-15
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS G
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN ACCORDANCE WITH THE MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
POOLING AND SERVICING AGREEMENT BANK, N.A.
DENOMINATION: $40,945,000 OR AS OTHERWISE SET SPECIAL SERVICER: LNR PARTNERS, INC.
FORTH ON SCHEDULE A HERETO
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF
JUNE 14, 2007 PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND CUSIP NO.: U48072 AC 3(1), 46630V AT 9(2), 46630V BG
SERVICING AGREEMENT (AS DEFINED HEREIN) 6(3)
CLOSING DATE: JUNE 14, 2007 ISIN NO.: USU48072AC35(1), US46630VAT98(2),
US46630VBG68(3)
FIRST DISTRIBUTION DATE:
JULY 12, 2007 COMMON CODE NO.: 30632532(1), 30630980(2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: G-[--]
CERTIFICATE BALANCE
OF THE CLASS G CERTIFICATES
AS OF THE CLOSING DATE: $40,945,000
--------------------------------------------------
(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 Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class G Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class G
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class G Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class G Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Certificate Balance Notation
Date Book-Entry Certificate of Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-16
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS H
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN ACCORDANCE WITH MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
THE POOLING AND SERVICING AGREEMENT BANK, N.A.
DENOMINATION: $32,756,000 OR AS OTHERWISE SET SPECIAL SERVICER: LNR PARTNERS, INC.
FORTH ON SCHEDULE A HERETO
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF
JUNE 14, 2007 PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND CUSIP NO.: U48072 AD 1(1), 46630V AU 6(2), 46630V BH
SERVICING AGREEMENT (AS DEFINED HEREIN) 4(3)
CLOSING DATE: JUNE 14, 2007 ISIN NO.: USU48072AD18(1), US46630VAU61(2),
US46630VBH42(3)
FIRST DISTRIBUTION DATE:
JULY 12, 2007 COMMON CODE NO.: 30632575(1), 30631013(2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: H-[--]
CERTIFICATE BALANCE
OF THE CLASS H CERTIFICATES
AS OF THE CLOSING DATE: $32,756,000
--------------------------------------------------
(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 Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class H Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class H
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class H Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class H Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Certificate Balance Notation
Date Book-Entry Certificate of Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-17
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS J
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
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 ACCORDANCE WITH THE MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
POOLING AND SERVICING AGREEMENT BANK, N.A.
DENOMINATION: $40,945,000 OR AS OTHERWISE SET SPECIAL SERVICER: LNR PARTNERS, INC.
FORTH ON SCHEDULE A HERETO
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF
JUNE 14, 2007 PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND CUSIP NO.: U48072 AE 9(1), 46630V AV 4(2), 46630V BJ
SERVICING AGREEMENT (AS DEFINED HEREIN) 0(3)
CLOSING DATE: JUNE 14, 2007 ISIN NO.: USU48072AE90(1), US46630VAV45(2),
US46630VBJ08(3)
FIRST DISTRIBUTION DATE:
JULY 12, 2007 COMMON CODE NO.: 30632591(1), 30631048(2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: J-[--]
CERTIFICATE BALANCE
OF THE CLASS J CERTIFICATES
AS OF THE CLOSING DATE: $40,945,000
--------------------------------------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class J
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class J Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class J Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Certificate Balance Notation
Date Book-Entry Certificate of Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-18
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS K
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
--------------------------------------------------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: 5.4700%, SUBJECT TO A MAXIMUM MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
RATE AS DESCRIBED IN THE POOLING AND SERVICING BANK, N.A.
AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $8,189,000 OR AS OTHERWISE SET
FORTH ON SCHEDULE A HERETO TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
JUNE 14, 2007
CUSIP NO.: U48072 AF 6(1), 46630V AW 2(2), 46630V BK 7(3)
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT (AS DEFINED HEREIN) ISIN NO.: USU48072AF65(1), US46630VAW28(2), US46630VBK70(3)
CLOSING DATE: JUNE 14, 2007 COMMON CODE NO.: 30632672(1), 30631072(2)
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: K-[--]
JULY 12, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS K CERTIFICATES
AS OF THE CLOSING DATE: $8,189,000
--------------------------------------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class K Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class K
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class K Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class K Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Certificate Balance Notation
Date Book-Entry Certificate of Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-19
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS L
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
-------------------------------------------------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: 5.4700%, SUBJECT TO A MAXIMUM MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
RATE AS DESCRIBED IN THE POOLING AND SERVICING BANK, N.A.
AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $8,189,000 OR AS OTHERWISE SET
FORTH ON SCHEDULE A HERETO TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
JUNE 14, 2007
CUSIP NO.: U48072 AG 4(1), 46630V AX 0(2), 46630V BL
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND 5(3)
SERVICING AGREEMENT (AS DEFINED HEREIN)
ISIN NO.: USU48072AG49(1), US46630VAX01(2),
CLOSING DATE: JUNE 14, 2007 US46630VBL53(3)
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 30632699(1), 30631161(2)
JULY 12, 2007
CERTIFICATE NO.: L-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS L CERTIFICATES
AS OF THE CLOSING DATE: $8,189,000
-------------------------------------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class L Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class L
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class L Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class L Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Certificate Balance Notation
Date Book-Entry Certificate of Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-20
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS M
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
-------------------------------------------------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: 5.4700%, SUBJECT TO A MAXIMUM MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
RATE AS DESCRIBED IN THE POOLING AND SERVICING BANK, N.A.
AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $16,378,000 OR AS OTHERWISE SET
FORTH ON SCHEDULE A HERETO TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
JUNE 14, 2007
CUSIP NO.: U48072 AH 2(1),46630V AY 8(2), 46630V BM 3(3)
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT (AS DEFINED HEREIN) ISIN NO.: USU48072AH22(1), US46630VAY83(2),
US46630VBM37(3)
CLOSING DATE: JUNE 14, 2007
COMMON CODE NO.: 30632753(1), 30631293(2)
FIRST DISTRIBUTION DATE:
JULY 12, 2007 CERTIFICATE NO.: M-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS M CERTIFICATES
AS OF THE CLOSING DATE: $16,378,000
-------------------------------------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class M Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class M
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class M Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class M Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Certificate Balance Notation
Date Book-Entry Certificate of Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-21
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS N
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
-------------------------------------------------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: 5.4700%, SUBJECT TO A MAXIMUM MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
RATE AS DESCRIBED IN THE POOLING AND SERVICING BANK, N.A.
AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $8,189,000 OR AS OTHERWISE SET
FORTH ON SCHEDULE A HERETO TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
JUNE 14, 2007
CUSIP NO.: U48072 AJ 8(1), 46630V AZ 5(2), 46630V BN
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND 1(3)
SERVICING AGREEMENT (AS DEFINED HEREIN)
ISIN NO.: USU48072AJ87(1), US46630VAZ58(2),
CLOSING DATE: JUNE 14, 2007 US46630VBN10(3)
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 30632834(1), 30631323(2)
JULY 12, 2007
CERTIFICATE NO.: N-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS N CERTIFICATES
AS OF THE CLOSING DATE: $8,189,000
-------------------------------------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class N Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class N
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class N Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class N Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Certificate Balance Notation
Date Book-Entry Certificate of Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-22
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS P
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS P CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
-------------------------------------------------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: 5.4700%, SUBJECT TO A MAXIMUM MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
RATE AS DESCRIBED IN THE POOLING AND SERVICING BANK, N.A.
AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $4,094,000 OR AS OTHERWISE SET
FORTH ON SCHEDULE A HERETO TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
JUNE 14, 2007
CUSIP NO.: U48072 AK 5(1), 46630V BA 9(2), 46630V BP
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND 6(3)
SERVICING AGREEMENT (AS DEFINED HEREIN)
ISIN NO.: USU48072AK50(1), US46630VBA98(2),
CLOSING DATE: JUNE 14, 2007 US46630VBP67(3)
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 30632885(1), 30631412(2)
JULY 12, 2007
CERTIFICATE NO.: P-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS P CERTIFICATES
AS OF THE CLOSING DATE: $4,094,000
-------------------------------------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS P CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class P Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class P
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class P Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class P Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS P CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Certificate Balance Notation
Date Book-Entry Certificate of Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-23
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS Q
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS Q CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: 5.4700%, SUBJECT TO A MAXIMUM MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
RATE AS DESCRIBED IN THE POOLING AND SERVICING BANK, N.A.
AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $12,284,000 OR AS OTHERWISE SET
FORTH ON SCHEDULE A HERETO TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
JUNE 14, 2007
CUSIP NO.: U48072 AM 1(1), 46630V AH 5(2), 46630V AK
CUT-OFF DATE: AS DEFINED IN THE POOLING AND 8(3)
SERVICING AGREEMENT (AS DEFINED HEREIN)
ISIN NO.: USU48072AM17(1), US46630VAH50(2),
CLOSING DATE: JUNE 14, 2007 US46630VAK89(3)
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 30632940(1), 30631480(2)
JULY 12, 2007
CERTIFICATE NO.: Q-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS Q CERTIFICATES
AS OF THE CLOSING DATE: $12,284,000
--------------------------------------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS Q CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class Q Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class Q
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class Q Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class Q Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS Q CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Certificate Balance Notation
Date Book-Entry Certificate of Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-24
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS NR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON
THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS NR CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE REPRESENTS A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
-------------------------------------------------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: 5.4700%, SUBJECT TO A MAXIMUM MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
RATE AS DESCRIBED IN THE POOLING AND SERVICING BANK, N.A.
AGREEMENT
SPECIAL SERVICER: LNR PARTNERS, INC.
DENOMINATION: $40,945,503 OR AS OTHERWISE SET
FORTH ON SCHEDULE A HERETO TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
JUNE 14, 2007
CUSIP NO.: U48072 AL 3(1), 46630V BB 7(2), 46630V BQ
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND 4(3)
SERVICING AGREEMENT (AS DEFINED HEREIN)
ISIN NO.: USU48072AL34(1), US46630VBB71(2),
CLOSING DATE: JUNE 14, 2007 US46630VBQ41(3)
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 30632966(1), 30631811(2)
JULY 12, 2007
CERTIFICATE NO.: NR-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS NR CERTIFICATES
AS OF THE CLOSING DATE: $40,945,503
-------------------------------------------------
(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 Gain on Sale Account and the REO Accounts, formed
and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class NR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class NR
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC19 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate represents a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended
(the "Code"). Each Holder of this Certificate, by acceptance hereof, agrees to
treat, and take no action inconsistent with the treatment of, this Certificate
in accordance with the preceding sentence for purposes of federal income taxes,
state and local income and franchise taxes and other taxes imposed on or
measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class NR Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class NR Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS NR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
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 interest in this Remaining Certificate Balance Notation
Date Book-Entry Certificate of Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-25
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS R
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE. OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA,
OR A CHURCH PLAN, AS DEFINED IN SECTION 3(33) OF ERISA, FOR WHICH NO ELECTION
HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS CERTIFICATE: MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
100% BANK, N.A.
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: LNR PARTNERS, INC.
JUNE 14, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT (AS DEFINED HEREIN) PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
CLOSING DATE: JUNE 14, 2007 CUSIP NO.: 46630V BC 5
FIRST DISTRIBUTION DATE: ISIN NO.: US46630VBC54
JULY 12, 2007
CERTIFICATE NO.: R-[--]
CLASS R PERCENTAGE INTEREST: 100%
CLASS R CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
is the registered owner of the interest evidenced by this Certificate in the
Class R Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC19 and are issued
in the classes as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Class R Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class R
Certificates shall be the "tax matters person" for the Upper-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Master Servicer is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent in
an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) and to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the
Distribution Date to the Person in whose name this Certificate is registered as
of the related Record Date. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under Section 5.02(d) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class R Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class R Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Master Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection with any proposed Transfer of any Ownership Interest
in a Class R Certificate, the Certificate Registrar shall require delivery to
it, and no Transfer of any Class R Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of an
Ownership Interest in a Class R Certificate to such proposed Transferee shall be
effected; and (D) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (1) to require a Transfer Affidavit from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest in such Class R Certificate and (2) not to transfer its Ownership
Interest in such Class R Certificate unless it provides to the Certificate
Registrar a letter substantially in the form attached to the Pooling and
Servicing Agreement as Exhibit D-2 (a "Transferor Letter") certifying that,
among other things, it has no actual knowledge that such prospective Transferee
is a Disqualified Organization, an Agent thereof, an ERISA Prohibited Holder or
a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-26
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC19, CLASS LR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE. OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA,
OR A CHURCH PLAN, AS DEFINED IN SECTION 3(33) OF ERISA, FOR WHICH NO ELECTION
HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS MASTER SERVICERS: CAPMARK FINANCE INC. AND XXXXX FARGO
CERTIFICATE: 100% BANK, N.A.
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: LNR PARTNERS, INC.
JUNE 14, 2007
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT (AS DEFINED HEREIN) PAYING AGENT: LASALLE BANK NATIONAL ASSOCIATION
CLOSING DATE: JUNE 14, 2007 CUSIP NO.: 46630V BD 3
FIRST DISTRIBUTION DATE: ISIN NO.: US46630VBD38
JULY 12, 2007
CERTIFICATE NO.: LR-[--]
CLASS LR PERCENTAGE INTEREST: 100%
CLASS LR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
is the registered owner of the interest evidenced by this Certificate in the
Class LR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC19,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC19 and are issued
in the classes as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Class LR Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class LR
Certificates shall be the "tax matters person" for the Lower-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Master Servicer is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent in
an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) and to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the
Distribution Date to the Person in whose name this Certificate is registered as
of the related Record Date. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class LR Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under Section 5.02(b) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class LR Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class LR Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Master Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection with any proposed Transfer of any Ownership Interest
in a Class LR Certificate, the Certificate Registrar shall require delivery to
it, and no Transfer of any Class LR Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or an
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of
an Ownership Interest in a Class LR Certificate to such proposed Transferee
shall be effected; and (D) Each Person holding or acquiring any Ownership
Interest in a Class LR Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Class LR Certificate and (2) not to
transfer its Ownership Interest in such Class LR Certificate unless it provides
to the Certificate Registrar a letter substantially in the form attached to the
Pooling and Servicing Agreement as Exhibit D-2 (a "Transferor Letter")
certifying that, among other things, it has no actual knowledge that such
prospective Transferee is a Disqualified Organization, an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2)/3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION ,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: June 14, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS LR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION ,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________________
Dated:________________________ NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular
without alteration or enlargement or any
change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
JPMCC 2007-CIBC19
Mortgage Loan Schedule (Combined)
Loan # Mortgagor Name
------ -------------------------------------------------------------------------------------------------
1 BP 000 Xxxxxxxxx Xxxxxx LLC
2 Ramco Jacksonville LLC
3 Sabre Headquarters, LLC
4 Green Hills Realty Associates LP
5 Cabot II-AZ1M01, LLC, Cabot II-GA1W10-W12, LLC, Cabot II-IN1W01, LLC, Cabot II-IN1W02 & W03, LLC,
Cabot II-KY1W02-W03, LLC, Cabot II-OH1M05, LLC, Cabot II-TN1W08, LLC, Cabot II-TN1W09, LLC,
Cabot II-TN2M01, LLC, Xxxxx XX-XX0X00, XX, Xxxxx XX-XX0X00, LP
5.01
5.02
5.03
5.04
5.05
5.06
5.07
5.08
5.09
5.1
5.11
5.12
5.13
5.14
5.15
6 Mid City Plaza L.L.C.
7 St. Julien Partners LLC
8 Columbia Properties Hartford, LLC
0 Xxxxxxxx Xxxxxxx Xxxxxxxx Hotel LP
10 Hunting Fox Associates III, L.P.
11 CP Memphis Properties, LLC
12 Harrisburg Realty Associates LP and Camp Hill Realty Associates LP
12.01
12.02
12.03
12.04
12.05
12.06
12.07
12.08
13 Fordham Fulton LLC
13.01
13.02
14 Plaza Co-op City LLC
00 Xxxx XX Xxxxxxxx Xxxxxxx XX, LLC
16 Art Mortgage Borrower Propco 2006-2 L.P., Art Mortgage Borrower Opco 2006-2 L.P.
16.01
16.02
16.03
16.04
16.05
16.06
16.07
16.08
16.09
16.1
16.11
16.12
16.13
16.14
16.15
16.16
16.17
16.18
16.19
16.2
00 Xxxxxxx Xxxxx X.X.X. & Xxxxxxx Xxxxx Retail, L.L.C
00 Xxxx Xxx II, LLC
19 Bldg 2007 Retail, LLC, Netarc LLC
19.01
19.02
19.03
19.04
19.05
19.06
19.07
19.08
19.09
20 WAOP Properties, LLC
00 Xxxxxxxxxx Xxxx Limited Partnership
22 Royal Oaks Plaza, Inc.
23 Euclid Realty LLC
24 Country Lake Apartments, LLC; Walnut Creek Investment, LLC; Xxxxxxxx Square Investment, LLC
24.01
24.02
24.03
00 Xxxxxxxx Xxxxx JPS, LLC, Hacienda Plaza Investors, LLC, Hacienda Plaza Princeton, LP
26 Freehold Shopping L.L.C.
27 1244 Dearborn, LLC
28 LM Hwy, LLC, LRV Holding, LLC, LIB JV GEC Holding, LLC
29 Xxxxxxxx of Phoenix, LLC
30 Park Contempo Ltd.
31 HOLO (SC) QRS 16-91, Inc.
32 TIG Chinatown Center, LP
33 Orange Apartment Investors, LLC
34 Stobba Associates, L.P.
35 Bataa/Kierland, LLC
36 Two Eleven North Stetson, LLC
00 Xxx Xxxxx Xxxxxxxxxx Xxxx, L.P.
38 Grove Hotel Group, Ltd.
39 Titan R&D Louisville BR, LLC
40 TCP Las Palmas Partners, Ltd.
41 94th and Xxxx , L.L.C.
42 RiverPark Six, LLC.
43 Arizona Golf Resort, LLC
00 Xxxxxxxxxx Xxxxxxxxxx, XXX, Xxxxxxxxx Apartments, LLC
44.01
44.02
45 River Park Four, LLC
00 Xxxxxx Xxxxxx Associates
47 Airline Two, L.L.C.
47.01
47.02
47.03
00 Xxxxxxx Xxxxx Xxxxx, XX, Xxxxxxx Vista Ridge 1, LP, Sequoia Vista Ridge 2, LP,
Sequoia Vista Ridge 3, LP, Sequoia Vista Ridge 4, LP and Sequoia Vista Ridge 5, LP
49 5th & G Plaza, Inc.
50 PM Greentree Place Chandler, LLC
51 KWN River City Investments L.P.
00 Xxxxx Xxxxx, X.X.X.
00 Xxx Xxx Xxxxxxx Holdings, L.P.
54 Northland Temple Place LLC
55 BPMS Xxxx Arbor, LLC
56 Xxxxx Lake Dunhill, LLC
57 BLDG VC Saddleback LLC, BLDG VC Olive Tree LLC
00 Xxxxx Xxxxxx Shopping Center, L.P.
59 Direct Invest-Xxxxxx, LLC
59.01
59.02
60 Shady Oaks LLC
61 Chowder Apartments LP
62 Xxxxxxx Hills Ice House Investments, L.P.
63 EWP-Xxxxxxx/Champaign, LLC
00 Xxxxxx Xxxx Xxxxx Realty, LLC
65 De Anza Moon Valley, LLC
66 000 Xxxxx Xxxxxx LLC
00 Xxxxxxxxx Xxxxxx Associates Limited Partnership
00 Xxxxxx Xxxx Crossing, L.P.
69 Natrona Pass, LLC
00 Xxxxxx Xxxx Xxxxxxxx XX, L.L.C., Osprey East Holdings MI-II, LLC
70.01
70.02
70.03
70.04
70.05
70.06
70.07
70.08
70.09
70.1
70.11
70.12
70.13
71 Xxxx Xxxxxxx, Xxxxx Xxxxxxx, n/k/a Xxxxx Xxxx, Xxxxx Xxxxxxx, n/k/a Xxxxx Xxxxx
00 Xxxxxxxxx Xxxxx XXX
00 00000 Xxxxxx, LLC
74 Town & Country MHC LLC
76 XXX Xxx Pointe, LLC
77 Carlton Hotel, LLC
78 466-26 SOHO LLC
79 AFCC II L.L.C.
80 0000 Xxxxxx Xxxx Associates, Ltd.
81 Xxxxx Holdings, LLC
82 Dengar Belt Limited Liability Limited Partnership
83 B.B.B. Plaza Associates, Ltd.
84 Fremont/Downtown Sacramento Partners, L.P.
85 Xxxxx ATT Dallas, LLC
00 Xxxxxxxxxx Xxxxxxx LLC
87 Cumberland Global, LLC
88 New Spring Office, LLC & NI Springville HQ, L.P.
89 PVP Properties LP
90 York Creek #6, L.L.C.
00 Xxxxxxx Xxxxxx Acquisitions LLC
92 TVO River Ranch Partners, L.P.
93 Greenbriar Associates, L.L.C.
94 AJD Investments Inc.
94.01
94.02
00 Xxxxxxxxxx Xxxxx, XXX
00 XX Temecula Properties, LLC
97 Liberty Tree SPE LLC
00 000xx Xxxxx Xxxxxxxx Xxxx
99 LSAC Orlando L.P.
100 SC Realty Ventures LP
000 Xxxxx Xxxxx Xxxxxxxx Xxxxxx Borrower Subsidiary LLC
000 Xxx/Xxxx Xxxx (GA) LLC
000 Xxxx Xxxx Xxxxx, LLC
000 Xxxxxxx Xxxx Xxxxxx LLC
105 First Financial Office Investment LLC, First Financial Fairfield Office Investment, LLC
000 Xxxxxx Xxxxx Xxxxxxx LLC
107 Xxxxx Xxxxxx Vineyard Properties LLC, Xxxxxx Xxxxxx Vineyard Properties LLC
000 Xxxxxx Xxxxxx Xxxxxx, LLC and Willow Pointe Xxxxxx, LLC
109 VG Conduit, LLC
110 Cheyenne Marketplace, LLC
111 Xxxxxx Xxxxxxx Hotel and Conference Center, L.L.C.
112 TKC CXVI, LLC
113 XX0 Xxxxxxxx Associates, L.P.
000 Xxxxxxxx Xxxxxx MHC LLC
115 Creekside4 Equities LLC
000 0 Xxxxxxxxxx Xxx Associates LLC
000 Xxxx Xx Xxxxxxxx XX, LLC
118 Xxxxxxxx Xxxxxxxxx, L.P., Kaufman Pure Office, L.P., Midland 500 Illinois, LLC
000 Xxx Xxxxxxx #X, XXX
000 Xxxxx Xxx Hotels, LLC
121 Lower Macungie Associates LP
122 Xxxxx Four Associates, L.P.
123 Merchant, LLC
000 Xxxxxx Xxxxxxx LLC
125 Edgebrook LLC
000 Xxxxxxxx Xxxxxxx LLC
127 North Haven Hotel, LLC
000 Xxxxxxxxxxx Xxxxxxxxxx #0, LLC
129 Omaha Hotel Investors, LLC
130 Xxxxxxxx Corridor Office Centre V, LLC
131 Milestone Xxxxx Crossing S.C., Ltd.
000 Xxxxx Xxxxx Xxxxxxxxx, LLC
133 BNC Xxxxxxx Villas, L.P.
000 00xx XXX XXXXXXXXX, LLC
000 Xxxxx Xxxxx Xxxxxxx LLC
136 New Town Properties, LLC
137 Xxxxxx Hospitality Group, LLC
138 Mesa Verde Partnership, LLP
139 Apartment Investors, LLC
140 Xxxxxx IV, LLC
141 Village Walk, LLC
000 XXX Xxxxx Xxxxxx Center Partners, L.P.
143 Sunset Key, LLC
144 Shri Vinayak, L.L.C.
000 Xxxxxxxxx Xxxxxxx LLC
146 Brookwood Associates Limited Partnership
147 Flanders Investment Property LLC
000 Xxxxxxxx Xxxxx, LLC
000 Xxxxxxxxx Xxxx #0, L.L.C.
150 El Gato Grande Limited Partnership
000 Xxxxxxxxx Xxxxx Holdings LLC
152 The Promenade, LLC
000 0000 Telephone Road, LLC
000 Xxxxxxxx Xxxxx LLC
155 Fat Cats SPE, LC
155.01
155.02
156 Telekey, LLC
157 Humble Hospitality, LLC
158 All Storage Trinity Precinct Associates, L.P.
159 Montcor, LLC
159.01
159.02
159.03
160 Xxxxxxxx Xxxxxxxx Garden Investors, LP
161 All Storage Xxxxx/Old Mill, L.P.
162 University Park at University Village, LLC
000 Xxxxxx Xxxx XXX
000 Xxxxx Xxxxxxxx Hotel LLC
165 CBH LLC
000 Xxxxxx Xxxxx LLLP
167 Perry Enterprises, LLC
000 Xxxxxx Xxxx Xxxxxx, X.X.X. & Xxxxxx Xxxx Xxxxxx II, LLC
169 Lake Country Sub, L.L.C.
170 XXXX Self Storage Montville, LLC
171 Wakefield Hotels, LLC
172 Planet Blue, LP
173 M.A.M.G.G. Properties LLC
000 Xxxxxx Xxxxxx Xxxxxxxxxx, L.L.C.
000 Xxxxx Xxxxxx Plaza, LLC
176 Wen-er Farms, LLC
000 Xxxxxxx Xxxxxx, LLC
000 Xxxxxxx Xxxxxx Flex LLC
000 Xxxxxxxxx Xxxxxxx LLC
000 Xxxxxxxx Xxxxxxx MHC LLC
181 2233 Nostrand, LLC
182 Brick-70, LLC
000 Xxxxxxxx Xxxxx Apartments, LLC
184 Leesport Acquisition, L.P.
185 Fishers Crossing Investors LLC
000 Xxxx Xxxxxxx Xxxx X.X.X.
000 Xxxxx Xxxxx Company LLP
000 Xxxxx Xxxx Xxxxxxxx Xxxxxx, Ltd.
189 Xxxxxx BNP, Inc.
190 ASSP, LLC
191 SHV Investors, LLC
000 Xxx Xxxxx Xxxxx XXX, Xxx Xxxxx Plaza II LLC
193 Chetty Limited Partnership
193.01
193.02
000 Xxxxx Xxxxx Xxxxxxx LLC
000 Xxxxxx Xxxxx Partnership, Ltd.
000 Xxxxx Xxxxxxxx Century-20, LLC
197 KG Hotel Partners, LLC
198 V-Xxxxxxx, LLC
199 R and E Properties, L.L.C.
200 Edison-1 North 35D, L.L.C.
201 N & R Hotels, Inc.
000 Xxxxxxxx Xxxxxxxxxx, XXX, Xxxx Xxxxxx Investment, LLC
000 Xxxxxxxx Xxx-Xxxxxxxx LLC
204 8450 Van Nuys Blvd. (Virginia), LLC
205 Beyerwood 95 Realty Associates, L.P.
206 Countryside/Fargo, Inc. and WRBCO, Inc.
206.01
206.02
207 FS1 Windrush Associates, L.P.
208 200 Somerset, L.L.C.
209 Feathersound Development, L.C.
210 Narconia Realty, Inc., Xxx Street Realty, Inc.
211 HSE II Associates LLC
000 Xxxxxxxx Xxxxxxxx Xxxxxx, X.X.X.
000 Xxxxxxxxxx Xxxxxx Shopping Center, L.L.C.
214 Empire Utah, LLC
215 Kobymay Properties, LLC
216 GAC 1999, LLC
000 Xxxxxxxx Xxxxxxxx Center, LLC
000 Xxxx Xxxxxxx Xxxxxxxxxx, X.X.X.
219 AFW, L.C.
220 SWC Lebanon Properties, Ltd.
221 Belveder Equities LLC
000 Xxxxxx-0 Xxxxx 34A, L.L.C.
223 MTSH Realty Massena New York, LLC
224 II Planet Blue II, LP
225 Redwood MHC LLC
226 3145 Rochambeau LLC
227 X.X. Xxxxxxxxx, L.L.C.
228 Xxxxxx O'Xxxxxx XX
229 Casa Di Citta LLC
000 Xxxxxxxxx Xxxxxxxxx-Xxxxxxxxxx, L.P.
231 RH Associates, Inc.
232 G.C. Inn, LLC
000 Xxxxxxxxx Xxxxx, XXX
000 Xxxxxxxxx Development Company, L.L.C.
235 Xxxxxxx Mesa, LLC
236 Hutch, Inc.
000 Xxxxxxxxxx Xxxxxxxxx, XXX, Xxxxxxxxx Xxxx, LLC, Xxxxxxxxx Xxxxx, LLC, Kettleman Xxxx, LLC
238 774 Northern LLC
239 Icon Industrial Park, LLC
240 KM-Wilcrest, LLC
241 Oakbrook Station, LLC
242 Founders Realty II LLC
#N/A
Loan # Property Address
------ ---------------------------------------------------------------------------------
1 000 Xxxxxxxxx Xxxxxx
2 I-95 and Xxxxx Road
3 3120 & 0000 Xxxxx Xxxxx
4 0000 Xxxxxxxxxx Xxxx, 000-000 Xxxxx Xxxxx, 000 Xxxxx Xxxxx & 000 Xxxxxx Xxxxxxxxx
5 Various
5.01 000 Xxxxx Xxxxxx Xxxx
5.02 000 Xxxxx Xxxxxxxxxx Xxxxx
5.03 000 Xxxxx Xxxxx Xxxx
5.04 0000 Xxxxxxx Xxxxx
5.05 000-000 Xxxxxxxx Xxxx Xxxx
5.06 0000 Xxxxxxx Xxxxx
5.07 3401 West Papago
5.08 0000 Xxxxxx Xxxxxxxxxx Xxxxxxxxx
5.09 5430 GA Highway 85
5.1 0000 Xxxxxxxx Xxxxx
5.11 0000 Xxxx Xxxxxx
5.12 0000 Xxxxxxxx Xxxx
5.13 0000-0000 Xxxxxxxx Xxxx
5.14 0000 Xxxxxxxxxx Xxxxx Xxxxx
5.15 0000 Xxxxxxxx Xxxx
6 000 Xxxx Xxxxxxx Xxxxxx
7 000 Xxxxxx Xxxxxx
8 00 Xxxx Xxxxxxx Xxxx
0 000 Xxxx Xxxxxxxxxx Pike
10 2450 West Hunting Xxxx Xxxxxx
00 0000 Xxxxxxxx Xxxx Xxxxxxxxx
12 Various
12.01 000 Xxxxxxxxx Xxxxxx Xxxxx
12.02 000 Xxxxxxxxx Xxxxxx Xxxxx
12.03 000 Xxxxxxxxx Xxxxxx Xxxxx
12.04 000 Xxxxxxxxx Xxxxxx
12.05 000 Xxxxxxxxxx Xxxxx
12.06 000 Xxxxxxxxx Xxxxxx
12.07 0000 Xxxx Xxxxx
12.08 0000 Xxxx Xxxxx
13 Various
13.01 000-000 Xxxx 000xx Xxxxxx
13.02 000-000 Xxxx 000xx Xxxxxx
14 691 Co-op City Boulevard
15 5905 - 0000 Xxxxx Xxxxxxxx Xxxxxx
16 Various
16.01 755 East 0000 Xxxxx Xxxxxx
16.02 0000 Xxxxxxxxxx Xxxxx
16.03 000 Xxxx Xxxxxxx Xxxxxx
16.04 000 Xxxxx Xxxxxxx Xxxx
16.05 00000 Xxxxxxxxx Xxxxx Xxxxxx
16.06 000 Xxxxxxx Xxxxx
16.07 0000 Xxxxx Xxxxxxx Xxxx
16.08 000 Xxxxxxxxxx Xxxxxxxxx
16.09 000 Xxxxxxx Xxxx
16.1 0000 Xxxxxxxx Xxxxxxx
16.11 0000 Xxxxxxx Xxxx
16.12 000 Xxxxx Xxxxxx
16.13 000 Xxxxxx Xxxx Xxxxx
16.14 0000 Xxxxxxxxx Xxxxxx
16.15 0000 Xxxxx Xxxx Xxxxxx
16.16 0000 Xxxxxxx Xxxxxxxxx
16.17 0000 XX Xxxxxxx 00
16.18 000 Xxxxxx Xxxxxx
16.19 0000 Xxxxx Xxxxxx
16.2 0000 Xxxx Xxxx Xxxxxx
00 0000-0000 Xxxx Xxxx
00 00 Xxxx Xxx Xxxx
19 Various
19.01 000 Xxxxxxxxx Xxxx
19.02 0000-0000 Xxxx Xxxxxxx Xxxxx
19.03 0000 Xxxxx Xxxxxxxx Xxxxxxx
19.04 0000 X-Xxx Xxxxx
19.05 000 Xxxx Xxxxxx
00.00 0000 Xxxxxx Xxxxxxx
19.07 0000 Xxxxx Xxxx
19.08 000 Xxxxx Xxxx Xxxxxx
19.09 000 Xxxxx Xxxxxxxxx Xxxxxx
20 712 Xxxxxxxx Poland Road and 377 Xxxxxxxx Xxxxxx Xxxx
00 000 Xxxxxxxxxx Xxxx
22 15400-15544 Xxxxxxxxx 00xx Xxxxx
00 00000 Xxxxxx Xxxxxx
00 Various
24.01 0000 Xxxxxx Xxxxx
24.02 0000 Xxxx 00xx Xxxxxx
24.03 000 Xxxxxxxxx Xxxxx Xxxx
00 0000-0000 North Hacienda Boulevard
26 3684 Xxxxx 0
00 0000 Xxxxx Xxxxxxxx Xxxxxx
28 1520 Lauderdale Memorial Xxxxxxx
00 0000 Xxxxx 00xx Xxxxxx
30 4080 West Xxxxx Xxxxxx
00 0 Xxxxxxxxxx Xxxxxx
32 00000 Xxxxx Xxxxx Xxxxxxxxx
33 Various
34 000 Xxxxx 0xx Xxxxxx
35 0000 Xxxx Xxxxxxxx Xxxxxxx
36 000 Xxxxx Xxxxxxx Xxxxxx
37 0000 Xxxxx Xxxxxx Xxxxxx
38 0000 Xxxxxxxxx 00xx Xxxxxxx
39 000 Xxxxxxxxx Xxxxx
40 000 Xxxxxxxxxxx Xxxx
41 0000 Xxxx Xxxx Xxxxxxxxx
00 00000 Xxxxx Xxxxx Xxxxx Xxxxxxx
00 000 Xxxxx Xxxxx Xxxx
44 Various
44.01 0000 Xxxxxx Xxxx Xxxx
44.02 0000 Xxx Xxxxx Xxxxx
00 00000 Xxxxx Xxxxx Front Parkway
46 SWC Xxxxx 000 xxx Xxxxxx Xxxxx Xxxx
47 Various
47.01 0000 Xxxx Xxxx Xxxxx Xxxxxxxxxx Xxxx
47.02 0000 Xxxxxxx Xxxxx
47.03 000 Xxxx Xxxx Xxxxx Industrial Xxxx
00 000 Xxxx Xxxxx Xxxxx Xxxx Drive
49 000-000 X Xxxxxx
50 000 Xxxxx Xxxxxxxxx Xxx
51 000 Xxxx Xxxxxxx Xxxxxx
52 1750 Route 46
00 000-000 Highway 80
54 00-00 Xxxxxx Xxxxx & 000-000 Xxxxxxxxxx Xxxxxx
55 1900 Xxxxxxx Road
00 0000-0000 West Xxxxx Xxxx Xxxx
00 0000 Xxxxxxxxxxx Xxxx
58 000 Xxxx Xxxxxx Xxxx
59 Various
59.01 0000 Xxxxxxxx Xxxx
59.02 0000 Xxxxx Xxxxx
60 5097 East Xxxxx Xxxx Xxxx
00 0000 Xxxxx Xxx Xxxxxx Avenue
62 9348 Civic Center Drive
63 000 Xxxxxxxxx Xxx
64 66, 92, 000 Xxxxx Xxxxxx
65 1001 0xx Xxxxxx Xxxx
00 000 Xxxxx Xxxxxx
67 0000-0000 Xxxxxx Xxxx
68 0000 Xxxx Xxxxxx Xxxx
69 6901-7145 North 0xx Xxxxxx & 0000-0000 Xxxxxxxxx Xxxxxxxxx
70 Various
70.01 00000 Xxxx Xxxxxx
70.02 44830-44990 Xxx Xxxxx Drive
70.03 14116 - 00000 Xxxx 00 Xxxx Xxxx
70.04 5936 Ford Court
70.05 00000 Xxxxxx Xxxxx
70.06 00000 Xxxxxx Xxxxx
70.07 00000 Xxxxxx Xxxxx
70.08 34575 Commerce
70.09 00000 Xxxxx Xxxxx
70.1 00000 Xxxxx Xxxxx
70.11 00000 Xxxxxxxx Xxxxx
70.12 00000 Xxxxxxxx Xxxxx
70.13 00000 Xxxxx Xxxx
00 000 Xxxxxxxx
00 00000 & 00000 Xxxxx 00xx Xxxxxx
73 21250 East 00xx Xxxxx
00 000 Xxxx Xxxxxx Xxxxxx
76 0000 Xxxxxxxx Xxxxx
77 0000 Xxxxxxx Xxxxxx
78 000 Xxxxxx Xxxxxx
79 000 Xxxx Xxxxxxxxx Xxxxx
80 0000-0000 Xxxxxx Xxxx
81 0000 00xx Xxxxxx
82 0000 Xxxxxx Xxxx Xxxx
83 14800-14860 South Military Trail & 0000 Xxxx Xxxxxxxx Xxxxxx
84 1501 16th Street
00 0000-0000 Empire Central
86 0000 Xxxx Xxxxxxxxx and Xxxxx Circle Drive
87 27301 Xxxx 00 Xxxx Xxxx
00 0000 Xxxx Neways Drive
89 000 Xxxx Xxxxxxxx Xxxxxx Xxxx
90 000 Xxxx Xxxxx Xxxxx Xxxxxxxxx
91 000-000 Xxxxxxx Xxxxxx
92 0000 Xxxxx Xxxxxx Xxxxxxxxx
93 000 Xxxxx Xxxxxxx
94 Various
94.01 000 Xxxx Xxxx Xxxxxx
94.02 000 Xxxx Xxxx Xxxxxx
95 0000 Xxxxxxxxx Xxxxx Xxxxxxxxx
96 00000 Xxxxxxxxx Xxxxxx
97 000 Xxxxxxxxxx Xxxxxx
98 10421 and 00000 Xxxxx Xxxxxx Xxxxxxx
99 0000 XxxxxXxxx Xxxxxx Xxxx
100 1000 Keystone Industrial Park
101 4775, 4805, 4807, 4813 & 0000 Xxxxxxxx Xxxx
102 5327 Mill Xxxxx Xxxx
000 0000 Xxx Xxxxxx
104 000 Xxxxxxx Xxxxxx
105 000 Xxxxx Xxxxx Xxxxxx
106 00-000 Xxxx Xxxxxx
107 000-000 Xxxxx Xxxx Xxxxxx Xxxxx
108 13717 Xxxxxxxxx 0xx Xxxxxx
000 Xxxxx Xxxxxx Xxxxx Avenue
110 0000-0000 Xxxx Xxxxxxxx Xxxxxx
000 0 Xxxx Xxxx Xxxxxx
000 0000 XX Xxxxxxxxx Xxxxx
000 000 Xxxxx Xxxxxx
114 0000 XxXxxx Xxxx
115 11000 Southwest Xxxxxxx Xxxxxx
000 0 Xxxxxxxxxx Xxx West
117 000 Xxxx Xxxxxx
000 000 Xxxx Xxxxxxxx Avenue
119 0000 Xxx Xxxxxxx Xxxxxxxxx
120 3800 & 0000 Xxxxx Xxxxxxx
000 0000 Xxxxxxxx Xxxxxxxxx
122 000 Xxxx 0xx Xxxxxx
123 1370 Veteran's Parkway
124 3308 Xxxx Xxxxxxxxx
000 0000 XxXxxx Xxxxxx
126 38455 Xxxxx Xxxxxxxx Xxxx
000 000 Xxxxxxxxxx Xxxxxx
128 000 Xxxxxxxxxxx Xxxxx Xxxx Xxxxxxxxx
129 7010 Xxxxxxx Xxxxxx
000 00000 Xxxxx Xxxxx
131 0000 XX 0000 Xxxx
132 1800 Fort Xxxxxxxx Xxxx
000 000 Xxxxxxx Xxx
134 3817 Plaza Drive
135 0000 Xxxxxxxxx Xxxx
136 0000 Xxxxx Xxxxxx
000 00000 X.X. Xxxxxxx 1
138 9700 Xxxx 00xx Xxxxx
000 000 Xxxx Xxxxxxxx Xxxxxx
000 000 and 000 Xxxxxx Xxxxxx
141 1990 Xxxxx 00 Xxxx
000 000 Xxxxx 0xx Xxxxxx & 000 Xxxx Xxxxxx
143 9039 Xxxxxx Xxxxxxxxx
000 0 Xxxxx Xxxxxxxxx Pike
145 38569 - 00000 Xxxxx Xxxxxxxx Xxxx
146 825 1st Avenue East
147 0000 Xxxxxxxx Xxxxx
148 20 Research Place
149 0000 Xxxxxxxxx Xxxxx Xxxxxxxxx
150 000-000 Xxxxxx Xxxxxx
151 000 Xxxxxxxxx Xxxxxx
000 Xxxxx Xxxxxx Xxxxx & XX-000
000 0000 Telephone Road
154 00X000 Xxxxxx Xxxx
155 Various
155.01 0000 Xxxxx 000 Xxxx
155.02 0000 Xxxxx Xxxxxxxxxx Xxxxxx
156 0000 Xxxx Xxx Xxxxxx Xxxxxxx
157 000 Xxxxxxxx Xxxxxx
158 0000 Xxxxxxx Xxxxxxxxx
159 Various
159.01 00000 Xxxxxxxxxx Xxxx
159.02 00000 Xxxxxxxxxx Xxxx
159.03 00000 Xxxxxxxxxx Xxxx
160 6609 & 0000 Xxxx Xxx Xxxxxxx Xxxxxxx Xxxxx
161 0000 Xxxxx Xxxxxxxxx
162 0000 Xxxxx Xxxxx Xxxx
163 0000 Xxxx Xxxxxx
164 4551 Highway 501
165 18614 Xxxxxxxxx Xxxxx
000 00000 Xxxx Xxxxxxxxxx Drive
167 1100 Factory Xxxxx Xxxxxxxxx & Xxxxx Xxxxx Xxxx
000 0000 and 0000 Xxxxxxxxxxx Xxxxx
169 0000 XX 0000 Xxxx Xxxx
000 0 Xxxxxx Xxxxxx Xxxx
171 11400 Common Xxxx Xxxxx
000 000 Xxxxxxxxxx Xxxxxxxxx
173 11101-11115 Xxxxxxxxxx Xxxxxx & 0000-0000 Xxxxxxx Xxxxxx
174 0000 Xxxxxx Xxx Xxxx
175 0000 Xxxxx Xxxxx Xxxxxx
176 21045 Xxxxxx Xxxxxx
000 000-000 Xxxxxx Xxxx
178 0000 Xxxxxxx Xxxxxx
179 000 Xxxxxxxxx Xxxxxxxxx
180 00000 Xxxxxxx Xxxxxx
181 0000 Xxxxxxxx Xxxxxx
182 550 Route 70
183 11580 Xxxx Xxxx Xxxxx
000 0000 Xxxxxxxxxx Xxxx
185 7236-7270 Xxxxxxx Xxxxxxxx Xxxxx
000 0000 Xxxxx Xxxxx Xxxxxx
187 0000 Xxxxx Xxxxx Xxxxx
188 2600 & 0000 Xxxxxxx Xxxx
000 0000 Xxxxxxxxx Xxxxxxxx Xxxx
000 0000 Xxxx Xxxxxx Xxxx
191 0000 Xxxx Xxxxxxxxxx Xxxxx & 000 Xxxxx Xxxxxx Xxxx
192 00 Xxx Xxxxx Xxxxxx
000 Various
193.01 Xxxxx 000 xxx Xxxxxxxxxxx Xxxx
193.02 000 Xxxxxx Xxxxx Xx
000 000 Xxxxxxxx Xxxxx
195 0000 Xxxxxxxxxx Xxxxxx
196 00 Xxxxxxx Xxxx Xxxxx
197 000 Xxxxx Xxxxxxx Xxxxx
198 000 Xxxxx Xxxxxxx Xxxxxx
199 0000 Xxxxxxxx
000 0000 Xxxxx 1
201 450 Xxxxx Xxxxxx Xxxxxxx
000 0000 Xxxx Xxxxxx
203 5050 Veterans Memorial Xxxxxxx
000 000 Xxxxx Xxxxxxxxx Xxxx
205 0000 Xxxxxx Xxxxx
206 Various
206.01 0000 0xx Xxxxxx Xxxxx
206.02 0000 Xxxxx Xxxxxx
207 4322 Xxxxxxxx Xxxx
000 000 Xxxxxx Xxxxx
209 000 Xxxxxxxx Xxxxxxx
210 000 Xxxxxxxx Xxxxxx and 00-00 Xxx Xxxxxx
211 9 Park Center Court
212 0000 Xxxx Xxx Xxxxx Xxxxxx
213 0000 Xxxxx 00xx Xxxxxx
214 1916 North 000 Xxxx Xxxxxx
000 0000 Xxxxx 00 Xxxx
216 000 Xxxxxxx Xxxxx
217 0000 Xxxx Xxxx Xxxxxxxxxxxx Xxxx
218 0000-0000 Xxxxxx Xxxx Southeast
219 680 South 500 East
220 0000 Xxxxxxx Xxxx
221 0000 Xxxxx Xxxxxxx Xxxxxx
000 0000 XX Xxxxxxx X
223 000 Xxxxxxx Xxxxxx
224 000 Xxx Xxxxxxx Xxxx & 0000 Xxxxxxxx Xxxx
225 15242 East 0000 Xxxxx Xxxx
000 0000 Xxxxxxxxxx Xxxxxx
000 0000-0000 Xxxxxxx Xxxx
000 00000 X'Xxxxxx Xxxx
229 00 Xxxx Xxxxxx Xxxxxx
230 757 State Xxxxx 00 Xxxxx
000 0000 Xxxxxxxxx Xxxxxx Xxxxx
000 0000 Xxxx Xxxx
233 39079 - 00000 Xxxxxxxx Xxxx
234 1302, 1306, 1310, 1314,1402, 1406, 1410, 0000 Xxxxx Xxxx Xxxxxx
235 0000 Xxxx Xxxxxxxx Xxxxxx
236 000 Xxxxxxxxxx Xxxxxx
237 0000-0000 Xxxx Xxxxxxxxx Xxxx
238 000 Xxxxxxxx Xxxxxx
239 44049-44175 Xxxxxxxxx Xxxxxxx
000 000-000 Xxxxxxxx Xxxxx
241 0000 Xxxxxxx Xxxxxxxxx Xxxxx
242 0000 Xxxxx Xxxxxx Xxxxxx
#N/A
Loan # City State Zip Code County
------ ---------------------------- ------- ------------ --------------------
1 Xxx Xxxx XX 00000 New York
2 Xxxxxxxxxxxx XX 00000 Xxxxx
3 Xxxxxxxxx XX 00000 Tarrant
4 Xxxxxxx XX 00000 Berks
5 Various Various Various Various
5.01 Xxxxxxxxx XX 00000 Davidson
5.02 Xxxxxxx XX 00000 Dallas
5.03 Xxxxxxx XX 00000 Dallas
5.04 Xxxxxx XX 00000 Boone
5.05 Xxxxxxxx XX 00000 Franklin
5.06 Xxxxxx XX 00000 Boone
5.07 Xxxxxxx XX 00000 Maricopa
5.08 Xxxxxxx XX 00000 Dekalb
5.09 Xxxxxx Xxxx XX 00000 Xxxxxxx
5.1 Xxxxxxx XX 00000 Shelby
5.11 Xxxxxxx XX 00000 Shelby
5.12 Xxxxxxxxxxxx XX 00000 Xxxxxx
5.13 Xxxxxxxxxxxx XX 00000 Xxxxxx
5.14 Xxxxxxx XX 00000 Dekalb
5.15 Xxxxxxxxxxxx XX 00000 Xxxxxx
6 Xxxxxxx XX 00000 Xxxx
7 Xxxxxxx XX 00000 Boulder
8 Farmington CT 0000 Xxxxxxx
0 Xxxxxxxx Xxxxxxx XX 00000 Xxxxxxxxxx
10 Xxxxxxxxxxxx XX 00000 Philadelphia
11 Xxxxxxx XX 00000 Shelby
12 Various PA Xxxxxxx Xxxxxxx
00.00 Xxxx Xxxx XX 00000 Cumberland
12.02 Xxxx Xxxx XX 00000 Cumberland
12.03 Xxxx Xxxx XX 00000 Cumberland
12.04 Xxxxxxxxxx XX 00000 Dauphin
12.05 Xxxxxxxxxx XX 00000 Dauphin
12.06 Xxxxxxxxxx XX 00000 Dauphin
12.07 Xxxxxxxxxx XX 00000 Dauphin
12.08 Xxxxxxxxxx XX 00000 Dauphin
13 Bronx NY Various Bronx
13.01 Xxxxx XX 00000 Bronx
13.02 Xxxxx XX 00000 Bronx
14 Xxxxx XX 00000 Bronx
15 Xxxxxxxx Xxxxxxx XX 00000 Saint Clair
16 Various Various Various Various
16.01 Xxxxxxxxxx XX 00000 Davis
16.02 Xxxxxxxxxxxx XX 00000 Xxxxxxxxxx
16.03 Xxxxxxx XX 00000 Franklin
16.04 Xxxxxxxxx XX 00000 Shenandoah
16.05 Xxxxxxxx XX 00000 Potter
16.06 Xxxxxxxxxxx XX 00000 Xxxxxx
16.07 Xxxx Xxxxxxx XX 00000 Xxxxxxxxxx
16.08 Xxxxxxxxxxxx XX 00000 Xxxx
16.09 Xxxxxxxx XX 00000 Onondaga
16.1 Xxxxxxx XX 00000 Xxxxxx
16.11 Xxxxxxx XX 00000 Wood
16.12 Xxxxxxx XX 00000 Stanislaus
16.13 Xxxxx XX 00000 Canyon
16.14 Xxxxxxxx XX 00000 Xxxxxx
16.15 Xxxxxxx XX 00000 Sedgwick
16.16 Xxxx Xxxxx XX 00000 Sebastian
16.17 Xxxxxx XX 00000 Xxxxxxx
16.18 Xxxxxx XX 00000 Suffolk
16.19 Xxxxxxxxxx XX 00000 Xxxxx
16.2 Walla Xxxxx XX 00000 Walla Walla
17 Xxxxxx XX 00000 Xxxx
00 Xxxxx Xxxx XX 00000 Somerset
19 Various Various Various Various
19.01 Xxxxxxxxxxxxxxx XX 00000 Xxxxxxxxxx
19.02 Xxxxxxx XX 00000 Sedgwick
19.03 Xxxxxxx XX 00000 Gwinnett
19.04 Xxxxxxxx XX 00000 Xxxxxx
19.05 Xxxxxxx XX 00000 Xxxxxx
19.06 Xxxxxxxx XX 00000 Xxxx
19.07 Xxxxxxx XX 00000 Shelby
19.08 Xxxxxxx XX 00000 Xxxxxx
19.09 Xxxxx Xxxxxxxx XX 00000 Cleveland
20 Xxxxxxxx XX 00000 Mahoning
21 Xxxxxxxxxxxx XX 00000 Monroe
22 Xxxxx Xxxxx XX 00000 Miami-Dade
23 Xxxxxxxxx XX 00000 Lake
24 Various IN Various Various
24.01 Kokomo IN 46902 Xxxxxx
24.02 Xxxxxxxxxxxx XX 00000 Xxxxxx
24.03 Westfield IN 00000 Xxxxxxxx
00 Xx Xxxxxx XX 00000 Los Angeles
26 Xxxxxxxx XX 00000 Monmouth
27 Xxxxxxx XX 00000 Xxxx
28 Xxxxxxxxxx XX 00000 Xxxxxxx
29 Xxxxxxx XX 00000 Maricopa
30 Xxxxx Xxx XX 00000 Orange
31 Xxxxxxxx XX 00000 Richland
32 Xxxxxx XX 00000 Xxxxxx
33 Xxxxxxxx XX 00000 Onondaga
34 Xxxxxxxxxxxx XX 00000 Philadelphia
35 Xxxxxxxxxx XX 00000 Maricopa
36 Xxxxxxx XX 00000 Xxxx
37 Xxxxxxx XX 00000 Orange
38 Xxxxx XX 00000 Miami-Dade
39 Xxxxxxxxxx XX 00000 Jefferson
40 Xxx Xxxxxxx XX 00000 Bexar
41 Xxxxxxxxxx XX 00000 Maricopa
42 Xxxxx Xxxxxx XX 00000 Xxxx Xxxx
00 Xxxx XX 00000 Maricopa
44 Various IN Various Various
44.01 Xxxxxxxxxxxx XX 00000 Xxxxxx
44.02 Xxxxxxxxx XX 00000 Xxxxxxx
45 Xxxxx Xxxxxx XX 00000 Xxxx Xxxx
00 Xxxxxxxxx XX 00000 Bucks
47 Various LA Various Various
47.01 Xxxxxxxxxx XX 00000 Caddo
47.02 Xxxxxxx Xxxx XX 00000 Bossier
47.03 Xxxxxxxxxx XX 00000 Caddo
48 Xxxxxxxxxx XX 00000 Xxxxxx
00 Xxxxx XX 00000 Yolo
50 Xxxxxxxx XX 00000 Maricopa
51 Xxxxxxxx XX 00000 Muskogee
00 Xxxx Xxxxxxxx XX 00000 Passaic
53 Xxx Xxxxxx XX 00000 Xxxx
54 Xxxxxx XX 00000 Suffolk
55 Xxxxxxxxxx XX 00000 Xxxxxx Xxxxxxx
00 Xxxx Xxxxxxx XX 00000 Calcasieu
57 Xxxxxxxx XX 00000 Franklin
58 Xxxxx XX 00000 Collin
59 Various Various Various Various
59.01 Xxxxxx XX 00000 New Castle
59.02 Xxxxxx Xxx XX 00000 Xxxx Arundel
60 Xxxxxxx XX 00000 Grundy
61 Xxxxxxx XX 00000 Orange
62 Xxxxxxx Xxxxx XX 00000 Los Angeles
63 Xxxxxxxxx XX 00000 Champaign
64 Xxxxxx XX 00000 Middlesex
65 Xxxxxx XX 00000 Sonoma
66 Xxx Xxxx XX 00000 Xxx Xxxx
00 Xxxxxxxxxxx XX 00000 Xxxxxxx
00 Xxxxxx XX 00000 Xxxxxx
69 Xxxxxxxxx XX 00000 Escambia
70 Various MI Various Various
70.01 Xxxxxx XX 00000 Macomb
70.02 Xxxxxxx Xxxxxxxx XX 00000 Macomb
70.03 Xxxxxx XX 00000 Macomb
70.04 Xxxxxxxx XX 00000 Xxxxxxxxxx
70.05 Xxxxxxx Xxxxxxxx XX 00000 Macomb
70.06 Xxxxxxx Xxxxxxxx XX 00000 Macomb
70.07 Xxxxxxx Xxxxxxxx XX 00000 Macomb
70.08 Xxxxxx XX 00000 Macomb
70.09 Xxxxxxx Xxxxxxxx XX 00000 Macomb
70.1 Xxxxxxx Xxxxxxxx XX 00000 Macomb
70.11 Xxxxxxx Xxxxxxxx XX 00000 Macomb
70.12 Xxxxxxx Xxxxxxxx XX 00000 Macomb
70.13 Xxxxxxx Xxxxxxxx XX 00000 Macomb
71 Xxx Xxxx XX 00000 New York
72 Xxxxxxx XX 00000 Maricopa
73 Xxxxxx XX 00000 Xxxxx
74 Xxx Xxxxxxx XX 00000 Xxxx
76 Xxxxxxxxxx XX 00000 Clermont
77 Xxxxx Xxxxx XX 00000 Miami-Dade
78 Xxx Xxxx XX 00000 Xxx Xxxx
00 Xxxxxxxx Xxxx XX 00000 Utah
80 Xxxxxx XX 00000 Broward
81 Xxxxx Xxxxxx XX 00000 Los Angeles
82 Xxxxxxxxxx XX 00000 Prince Georges
83 Xxxxxx Xxxxx XX 00000 Palm Beach
84 Xxxxxxxxxx XX 00000 Sacramento
85 Xxxxxx XX 00000 Dallas
00 Xxxx Xxxx XX 00000 Xxxx
00 Xxxxxxxxxx XX 00000 Oakland
88 Xxxxxxxxxxx XX 00000 Utah
89 Xxxxxx XX 00000 Ventura
00 Xxxxxxxx Xxxx XX 00000 Kent
91 Xxxxxx XX 00000 Middlesex
92 Xxxx Xxxxx XX 00000 Tarrant
93 Xxxxxxxxx XX 00000 Litchfield
94 Xxxxx XX 00000 Watuaga
94.01 Xxxxx XX 00000 Watuaga
94.02 Xxxxx XX 00000 Watuaga
95 Xxxxxx XX 00000 Xxxxxx
96 Xxxxxxxx XX 00000 Riverside
97 Xxxxxx XX 00000 Suffolk
98 Xxxxx Xxxxxx XX 00000 Xxxx Xxxx
00 Xxxxxxx XX 00000 Orange
100 Xxxxxxx XX 00000 Lackawanna
000 Xxxxxxx Xxxxxxx XX 00000 Xxxxxx Xxxxxx'x
000 Xxxx Xxxx XX 00000 Lowndes
103 Xxxxxx XX 00000 Xxxxxxxxxx
000 Xxxx Xxxxxx XX 00000 Essex
105 Xxxxxxxxx XX 00000 Milwaukee
106 Xxxxxx XX 00000 Middlesex
000 Xxxx Xxxxxxx XX 00000 Riverside
108 Xxxxxxxxx XX 00000 Xxxxx
109 Xxxxxxxxx XX 00000 Xxxx Arundel
000 Xxxxx Xxx Xxxxx XX 00000 Xxxxx
000 Xxxxx Xxxxx XX 00000 Walla Walla
112 Xxxxxx XX 00000 Durham
000 Xxxxxx Xxxxxxx XX 00000 Nueces
114 Portage IN 00000 Xxxxxx
000 Xxxxxxxxx XX 00000 Washington
116 Xxxxxxxxx XX 00000 Monmouth
000 Xxxxxxxx XX 00000 Jefferson
118 Xxxxxxx XX 00000 Midland
119 Xxxxxxxx Xxxx XX 00000 Oklahoma
000 Xxxxxxx XX 00000 Barnstable
121 Xxxxxxxx XX 00000 Lehigh
000 Xxxxxxxxxx XX 00000 Xxx Xxxxxx
123 Clarksville IN 00000 Xxxxx
000 Xxxx Xxxx XX 00000 Lake
000 Xxxxxxxx XX 00000 Dekalb
000 Xxxxx Xxxx XX 00000 Lake
000 Xxxxx Xxxxx XX 00000 Xxx Xxxxx
000 Xxxxxxxxxx XX 00000 Xxxxxx
000 Xxxxx XX 00000 Xxxxxxx
130 Novi MI 48377 Oakland
131 Xxxxxx XX 00000 Xxxxxx
132 Terre Haute IN 00000 Xxxx
000 Xxxxxxxxxx XX 00000 Dallas
134 Xxxxxxxxx XX 00000 San Diego
135 Park City IL 00000 Xxxx
000 Xxxxx Xxxxxxx XX 00000 Xxxxx Xxxxxxx
000 Xxxx Xxxxx XX 00000 Xxxx Xxxxx
000 Xxxxxx XX 00000 Jefferson
000 XxXxxxx XX 00000 Xxxxxxx
000 Xxxxxxx Xxxx xxx Xxxxxxxxxxx XX 00000, 07663 Bergen
000 Xxxxxx Xxxx XX 00000 Camden
000 Xxxx XX 00000 McLennan
000 Xxxx Xxxxxxxxx XX 00000 Xxx Xxxxxxx
000 Xxxxx XX 00000 Xxxxxxx
000 Xxxxx Xxxx XX 00000 Lake
000 Xxxx Xxxxx XX 00000 Cass
000 Xxx Xxxxx XX 00000 San Diego
000 Xxxxx Xxxxxxxxxx XX 00000 Middlesex
000 Xxxxx Xxxxxx XX 00000 Kent
150 Xxxxxxxxxx XX 00000 Berkshire
000 Xxxxxxxxx XX 00000 Xxxxxxxxx Xxxx
000 Xxxxxx XX 00000 Xxxx
000 Xxxxxxx XX 00000 Ventura
000 Xxxx Xxxxxxx XX 00000 Dupage
155 Various UT Various Various
155.01 Xxxx Xxxx Xxxx XX 00000 Salt Lake
155.02 Xxxxx XX 00000 Utah
156 Xxxxx XX 00000 Maricopa
157 Xxxxxxx XX 00000 Xxxxx
158 Xxxx Xxxxx XX 00000 Tarrant
159 Xxxxxxxxxx XX 00000 Xxxxxxxx
159.01 Xxxxxxxxxx XX 00000 Xxxxxxxx
159.02 Xxxxxxxxxx XX 00000 Xxxxxxxx
159.03 Xxxxxxxxxx XX 00000 Xxxxxxxx
160 Houston TX 00000 Xxxxxx
000 Xxxxxxxxxx XX 00000 Dallas
162 Westville IN 00000 Xx Xxxxx
000 Xx Xxxxxx XX 00000 Xxxx
000 Xxxxxx Xxxxx XX 00000 Horry
165 Hagerstown MD 21742 Washington
166 Parker CO 00000 Xxxxxxx
000 Xxxxxxx XX 00000 Cherokee
168 Xxxx XX 00000 Oakland
000 Xxxxxx XX 00000 Xxxxxx
170 Xxxxxxxxx XX 00000 Xxxxxx
171 Xxxxxxx XX 00000 Wake
172 Xxxxxxx XX 00000 Madison
000 Xxxxxx Xxxxx XX 00000 Orange
174 Xxxxxxxx XX 00000 Camden
175 Xxxxxxxxxxxx XX 00000 Philadelphia
000 Xxxxxxxx Xxxxx XX 00000 Xxx Xxxxxxx
177 Xxxxxxxxx XX 00000 Ventura
178 Xxxxxxxxx XX 00000 Suffolk
179 Anderson IN 00000 Xxxxxxx
000 Xxxx Xxxxxx XX 00000 Xxxx
181 Xxxxxxxx XX 00000 Kings
182 Brick NJ 00000 Xxxxx
000 Xxxxxxxxxx XX 00000 Xxxxxxxx
184 Xxxxxxxx XX 00000 Berks
185 Fishers IN 00000 Xxxxxxxx
000 Xxxx XX 00000 Utah
187 Xxxxxxxxx XX 00000 Dakota
000 Xxxxxx XX 00000 Xxxx
189 Catonsville MD 21228 Baltimore
190 Xxxxxxxxxx XX 00000 Jefferson
191 Xxxx XX 00000 Maricopa
192 Xxxxxxxx XX 00000 Kings
193 Various PA Various Various
193.01 Xxxx Xxxxx XX 00000 Delaware
193.02 Xxxxxxx Xxxxxx XX 00000 Xxxxxxx
000 Xxxxxxx XX 00000 Kankakee
000 Xxxx Xxxxx XX 00000 Tarrant
196 Xxxxxx XX 00000 Albany
000 Xxxxxxx WV 00000 Xxxxxx
000 Xxxxxxxxxx XX 00000 Alexandria City
000 Xxx Xxxxxxx XX 00000 Bexar
000 Xxxxxx XX 00000 Middlesex
000 Xxxxxxxxxxx XX 00000 Xxxx
000 Xxxxxxxx XX 00000 Potter
000 Xxxxxxxx XX 00000 Suffolk
204 Xxxxxxxx Xxxxx XX 00000 Xxxxxxxx Xxxxx Xxxx
000 Xxxxxxxxxxxx XX 00000 Philadelphia
206 Various Various Various Various
206.01 Xxxxx XX 00000 Cass
206.02 Xxxxxx XX 00000 Xxxx
000 Xxxxxx Xxxxxxx XX 00000 Nueces
208 Xxxxxxxx XX 00000 Somerset
000 Xxxxx Xxxxxxxxxx XX 00000 Pinellas
000 Xxxxxxxxxx, Xxxxxxxxx XX 00000, 02139 Middlesex
000 Xxxxxx Xxxxx XX 00000 Baltimore
212 Xxxxxxx XX 00000 Maricopa
213 Xxxxxxxxxxxx XX 00000 Philadelphia
214 Xxxxxx XX 00000 Xxxxx
000 Xxxxx Xxxxxx XX 00000 Burlington
216 Xxxxxxxxxx XX 00000 Pitt
217 Xxxxxxxxxx XX 00000 Clermont
000 Xxxxxxxxxx XX 00000 District of Columbia
219 American Fork UT 84003 Utah
000 Xxxxxx XX 00000 Collin
221 Baltimore MD 21201 Xxxxxxxxx Xxxx
000 Xxxxxx XX 00000 Middlesex
223 Xxxxxxx XX 00000 Xx. Xxxxxxxx
000 Xxxxxxx XX 00000 Madison
225 Pontiac IL 61764 Xxxxxxxxxx
000 Xxxxx XX 00000 Bronx
227 Xxxxxxxx XX 00000 Las Animas
000 Xxx Xxxxxxx XX 00000 Bexar
229 Xxxxxxxx XX 00000 Franklin
000 Xxxx Xxxxxxxxx XX 00000 Xxxxxx
231 Xxxxx XX 00000 Cass
000 Xxx Xxxxx XX 00000 Grant
000 Xxxxxxx Xxxxxxxx XX 00000 Macomb
234 Xxxx Xxxx XX 00000 Jasper
235 Xxxx XX 00000 Maricopa
236 Xxxxxxxxxx XX 00000 XxXxxx
237 Lodi CA 95242 San Xxxxxxx
238 Xxxxxxxxx XX 00000 Dekalb
000 Xxxxxxx Xxxxxxxx XX 00000 Macomb
240 Xxxxxxx XX 00000 Xxxxxx
241 Xxxxxxxxxx XX 00000 Xxxxx
242 Xxxxxxxxxx XX 00000 Caddo
#N/A #N/A #N/A #N/A
Loan # Property Name Size Measure Interest Rate (%)
------ --------------------------------------------------- ------- ----------- -----------------
1 000 Xxxxxxxxx Xxxxxx 1030309 Square Feet 5.49300
2 River City Marketplace 559796 Square Feet 5.43550
3 Sabre Headquarters 473940 Square Feet 5.79850
0 Xxxxx Xxxxx Xxxxxxxxx Xxxxxx 000000 Square Feet 5.84000
0 Xxxxx Xxxxxxxxxx Xxxxxxxxx X 0000000 Square Feet 5.71400
5.01 000 Xxxxx Xxxxxx Xxxx 000000 Xxxxxx Feet 5.71400
5.02 000 Xxxxx Xxxxxxxxxx Xxxxx 000000 Xxxxxx Feet 5.71400
5.03 000 Xxxxx Xxxxx Xxxx 208800 Square Feet 5.71400
5.04 0000 Xxxxxxx Xxxxx 00000 Xxxxxx Feet 5.71400
5.05 000-000 Xxxxxxxx Xxxx Xxxx 107450 Square Feet 5.71400
5.06 0000 Xxxxxxx Xxxxx 00000 Xxxxxx Feet 5.71400
5.07 0000 Xxxx Xxxxxx 00000 Xxxxxx Feet 5.71400
5.08 0000 Xxxxxx Xxxxxxxxxx Xxxxxxxxx 00000 Xxxxxx Feet 5.71400
5.09 0000 XX Xxxxxxx 00 00000 Xxxxxx Feet 5.71400
5.1 0000 Xxxxxxxx Xxxxx 105785 Square Feet 5.71400
5.11 0000 Xxxx Xxxxxx 000000 Xxxxxx Feet 5.71400
5.12 0000 Xxxxxxxx Xxxx 00000 Xxxxxx Feet 5.71400
5.13 0000-0000 Xxxxxxxx Xxxx 46617 Square Feet 5.71400
5.14 0000 Xxxxxxxxxx Xxxxx Xxxxx 00000 Xxxxxx Feet 5.71400
5.15 0000 Xxxxxxxx Xxxx 00000 Xxxxxx Feet 5.71400
0 Xxxxxx Xxxxx Xxxxx Xxxxxxx 398 Rooms 6.22000
7 St. Julien Hotel & Spa 201 Rooms 5.67450
8 Marriott - Farmington 381 Rooms 5.87000
9 Doubletree Guest Suites 253 Rooms 5.60250
10 Temple U Health System Headquarters 265634 Square Feet 5.74350
11 Marriott - Memphis 319 Rooms 5.82000
12 Harrisburg Portfolio 356502 Square Feet 5.86027
12.01 000 Xxxxxxxxx Xxxxxx Xxxxx 000000 Xxxxxx Feet 5.86027
12.02 000 Xxxxxxxxx Xxxxxx Xxxxx 00000 Xxxxxx Feet 5.86027
12.03 000 Xxxxxxxxx Xxxxxx Xxxxx 00000 Xxxxxx Feet 5.86027
12.04 000 Xxxxxxxxx Xxxxxx 00000 Xxxxxx Feet 5.86027
12.05 000 Xxxxxxxxxx Xxxxx 00000 Xxxxxx Feet 5.86027
12.06 000 Xxxxxxxxx Xxxxxx 00000 Xxxxxx Feet 5.86027
12.07 0000 Xxxx Xxxxx 00000 Xxxxxx Feet 5.86027
12.08 0000 Xxxx Xxxxx 00000 Xxxxxx Feet 5.86027
00 Xxxxx Xxxxxxxxx Xxxxxxxxx 000 Units 5.74000
13.01 000-000 Xxxx 000xx Xxxxxx 321 Units 5.74000
13.02 000-000 Xxxx 000xx Xxxxxx 169 Units 5.74000
00 Xxxxxxxx Xxxxxx 139646 Square Feet 5.67000
00 Xxxxxxx Xxxxx Shopping Center 184656 Square Feet 5.69550
16 AmeriCold Portfolio 5489325 Square Feet 5.39600
16.01 Clearfield 455227 Square Feet 5.39600
16.02 Murfreesboro 226423 Square Feet 5.39600
16.03 Xxxxxxx 299776 Square Feet 5.39600
16.04 Strasburg 243170 Square Feet 5.39600
16.05 Amarillo 163796 Square Feet 5.39600
16.06 Thomasville 252419 Square Feet 5.39600
16.07 West Memphis 252075 Square Feet 5.39600
16.08 Russellville 270772 Square Feet 5.39600
16.09 Syracuse 573183 Square Feet 5.39600
16.1 Atlanta 431369 Square Feet 5.39600
16.11 Xxxxxxx 127260 Square Feet 5.39600
16.12 Turlock 188734 Square Feet 5.39600
16.13 Nampa 458518 Square Feet 5.39600
16.14 Xxxxxxxx 327601 Square Feet 5.39600
16.15 Wichita 168007 Square Feet 5.39600
16.16 Fort Xxxxx 118003 Square Feet 5.39600
16.17 Sebree 111499 Square Feet 5.39600
16.18 Boston 260356 Square Feet 5.39600
16.19 Xxxxxxxxxx 000000 Square Feet 5.39600
16.2 Walla Walla 162914 Square Feet 5.39600
00 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx 00000 Xxxxxx Feet 5.73440
00 Xxxx Xxx Xxxxxxx 530 Units 5.60400
19 LG Portfolio 243058 Square Feet 5.72000
19.01 X.X. Xxxxx and Thomasville 40872 Square Feet 5.72000
19.02 Circuit City and OfficeMax 68037 Square Feet 5.72000
19.03 OfficeMax and Sports Authority 66937 Square Feet 5.72000
19.04 Xxxxxxxx - Xxxxxxxx 00000 Square Feet 5.72000
19.05 XxxxXxxx - Xxxxxxx 00000 Square Feet 5.72000
19.06 Hollywood Video 7488 Square Feet 5.72000
19.07 Walgreens and H&R Block 14294 Square Feet 5.72000
19.08 CaroMont - Xxxxxxx 8323 Square Feet 5.72000
19.09 CaroMont - Kings Mountain 3624 Square Feet 5.72000
20 The Shops at Xxxxxxxx Park 198496 Square Feet 5.69500
21 Crossroads Center 243669 Square Feet 5.77250
00 Xxxxx Xxxx Xxxxx 000000 Xxxxxx Feet 5.69000
23 ABB Automation, Inc. 536426 Square Feet 5.88000
24 Zidan-Springhill and Walnut Creek 626 Units 5.59000
24.01 Walnut Creek 240 Units 5.59000
24.02 Country Lakes 184 Units 5.59000
24.03 Xxxxxxxx Xxxxxx 000 Units 5.59000
00 Xxxxx xx Xxxxxxxx 000000 Square Feet 5.66000
00 Xxxxxxxx Xxxx 219908 Square Feet 5.91000
27 Hotel Indigo 165 Rooms 5.76000
28 GE - Xxxxxxxxx, XX 000000 Square Feet 5.81000
00 Xxxxxxx Xxxxxx - XXX 000 Rooms 5.85000
00 Xxxx Xxxxxxx 191 Pads 5.61500
31 Holopack International Corp. 99961 Square Feet 6.08000
32 China Town Center 163744 Square Feet 6.42000
00 Xxxxxx Xxxx Xxxxxxxxxx Xxxxxxxxx 000 Units 6.21000
00 Xxxxxx Xxxxxx 56761 Square Feet 5.74000
00 Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxx X 000000 Square Feet 5.78000
00 Xxxxxxxxx Xxxxxxxx Xxxx - Xxxxxxxx Xxxxxx 000000 Square Feet 6.46000
00 Xxx Xxxxx Xxxxxxx 000 Pads 5.61500
00 Xxxxxxx Xxx Xxxxxxx Xxxxx 136 Rooms 5.96350
39 Airport Industrial Center 1093510 Square Feet 5.97600
00 Xxx Xxxxxx Xxxxxxxx Xxxxxx 000000 Xxxxxx Feet 5.62150
41 0000 Xxxx Xxxxxxxxx 00000 Xxxxxx Feet 6.05000
42 River Park 6 130225 Square Feet 5.52000
43 Arizona Golf Resort 187 Rooms 6.77000
44 Zidan/Van Rooy Apartment Portfolio 488 Units 5.59000
44.01 Springhill 304 Units 5.59000
44.02 Sandstone 184 Xxxxx 0.00000
00 Xxxxx Xxxx 130225 Square Feet 5.52000
00 Xxxxxx Xxxxxx Xxxxxx 000000 Square Feet 5.89000
47 Shreveport Storage Portfolio 2635 Units 5.66750
47.01 EBK 977 Units 5.66750
47.02 Airline 824 Units 5.66750
47.03 I-49 834 Units 5.66750
48 Bluff at Vista Ridge 272 Units 5.84000
00 0xx & X Xxxxx 00000 Xxxxxx Feet 6.14200
00 Xxx Xxxxxxxxx Xxxxx Xxxxxxxxxx 000 Units 5.61000
00 Xxxxx Xxxx Xxxxx Xxxxxxxx Xxxxxx 000000 Square Feet 5.79200
00 Xxxxx Xxxxx Shopping Center 49370 Square Feet 5.79950
00 Xxx Xxx Xxxxx Xxxxxxxx Xxxxxx 000000 Xxxxxx Feet 5.67000
54 00 Xxxxxx Xxxxx 00000 Xxxxxx Feet 5.61000
00 Xxxx Xxxxx Xxxxxxxxxx 000 Xxxxx 5.64000
56 Xxxxx Lake Plaza 130805 Square Feet 5.70000
57 Value City 486531 Square Feet 5.92000
00 Xxxxx Xxxxxx Xxxxxxxx Xxxxxx 000000 Square Feet 5.96000
59 Invesco Portfolio 414225 Square Feet 5.66300
59.01 0000 Xxxxxxxx Xxxx 261729 Square Feet 5.66300
59.02 0000 Xxxxx Xxxxx 000000 Xxxxxx Feet 5.66300
60 Shady Oaks 364 Pads 5.79120
61 Chowder Bay Apartments 304 Units 5.57700
62 Xxxxxxx Hills Ice House 44673 Square Feet 5.68400
63 Water's Edge Apartments 200 Units 5.77400
00 Xxxx Xxxxx Xxxxxxxxxx 000 Units 5.95500
65 Moon Valley 247 Pads 5.70000
66 000 Xxxxx Xxxxxx 00000 Xxxxxx Feet 5.54000
00 Xxxxxxxxx Xxxxxx 136487 Square Feet 5.69150
00 Xxxxxx Xxxx Xxxxxxxx 000000 Xxxxxx Feet 5.90000
00 Xxxxxxxx Xxxxx 186412 Square Feet 5.89000
70 Osprey Portfolio - Michigan 376038 Square Feet 5.61600
70.01 00000 Xxxx Xxxxxx 97422 Square Feet 5.61600
70.02 44830-44990 Xxx Xxxxx 43460 Square Feet 5.61600
70.03 Ten Mile Buildings 56138 Square Feet 5.61600
70.04 0000 Xxxx Xxxxx 00000 Xxxxxx Feet 5.61600
70.05 00000 Xxxxxx Xxxxx 00000 Xxxxxx Feet 5.61600
70.06 00000 Xxxxxx Xxxxx 22280 Square Feet 5.61600
70.07 00000 Xxxxxx Xxxxx 00000 Xxxxxx Feet 5.61600
70.08 34575 Commerce 14688 Square Feet 5.61600
70.09 00000 Xxxxx Xxxxx 00000 Xxxxxx Feet 5.61600
70.1 00000 Xxxxx Xxxxx 00000 Xxxxxx Feet 5.61600
70.11 00000 Xxxxxxxx Xxxxx 00000 Xxxxxx Feet 5.61600
70.12 00000 Xxxxxxxx Xxxxx 8970 Square Feet 5.61600
70.13 00000 Xxxxx Xxxx 7500 Square Feet 5.61600
71 000 Xxxxxxxx 00000 Xxxxxx Feet 5.62000
00 Xxxxxxxxx Xxxxx Xxxx Xxxxxx 00000 Xxxxxx Feet 5.65800
00 Xxxxxxxxxxx Xxxxxxxx 262500 Square Feet 5.70000
74 Town & Country 309 Pads 5.79120
76 Total Quality Logistics 95833 Square Feet 6.53100
00 Xxxxxxx Xxxxx - Xxxxx Xxxxx 67 Rooms 6.25000
78 000 Xxxxxx Xxxxxx 00000 Xxxxxx Feet 5.77000
00 Xxx Xxxxxxx Xxxxx XX 000000 Square Feet 5.61000
00 Xxxxxxxxxx Xxxxx 00000 Xxxxxx Feet 5.51000
81 DL Storage 1050 Units 5.68150
82 0000 Xxxxxx Xxxx Xxxx 000000 Xxxxxx Feet 5.72650
83 Bed Bath & Beyond Plaza 77677 Square Feet 5.98000
84 The Fremont Building 69 Square Feet 5.63000
00 XX&X Xxxxxx - Xxxxxx, XX 000000 Square Feet 5.78000
00 Xxxxxxxxxx Xxxxxxx 225 Pads 5.79120
87 Cumberland Tech Center 107977 Square Feet 5.72000
00 Xxxxxx Xxxxxx Xxxxxxxx 00000 Xxxxxx Feet 5.93200
00 Xxxxxxxx Xxxxxx Xxxxx 00000 Square Feet 5.89700
90 York 312 Units 5.85000
91 Filene' s Basement 32269 Square Feet 5.56000
00 Xxxxx Xxxxx Xxxxxxxxxx 000 Xxxxx 5.78000
00 Xxxxxxxxxx Xxxxx Xxxxxxxxxx 000 Xxxxx 5.84350
94 Country Inn & Best Western 141 Rooms 5.87000
94.01 Best Western - Blue Ridge 73 Rooms 5.87000
94.02 Xxxxxxx Xxx & Xxxxxx 00 Xxxxx 0.00000
00 Xxxxxxxxxx Xxxxx 00000 Xxxxxx Feet 5.91600
96 Holiday Inn Express - Temecula 90 Rooms 5.74160
00 Xxxxxxx Xxxx Xxxxxxxx 00000 Xxxxxx Feet 5.97000
00 000xx Xxxxx Xxxxxxxx Xxxx 00000 Square Feet 5.70000
99 Corinthian Colleges 59927 Square Feet 5.72150
100 Xxxxxx Xxxxxxx 296000 Square Feet 5.65000
000 Xxxxx Xxxxx Xxxxxxxx Xxxxxx 00000 Xxxxxx Feet 5.73000
000 Xxxx Xxxx Xxxxxxx 000000 Xxxxxx Feet 5.96000
000 Xxxx Xxxx Xxxxx 000000 Xxxxxx Feet 5.68000
000 Xxxxxxx - Xxxx Xxxxxx, XX 00000 Square Feet 5.82000
105 First Financial Centre 147799 Square Feet 5.97000
000 Xxxxxx Xxxxx Xxxxxxx 00000 Square Feet 5.70000
000 Xxxxxxxx Xxxxxxxx 00000 Xxxxxx Feet 5.53000
000 Xxxxxx Xxxxxx Xxxxxxxxxx 000 Xxxxx 5.80000
000 Xxxxxxx Xxxxxx xx Xxxxxxxxx 00000 Square Feet 5.62700
000 Xxxxxxxx Xxxxxx Xxxxx 00000 Xxxxxx Feet 5.75000
111 Xxxxxx Xxxxxxx Hotel 91 Rooms 5.59950
000 Xxxxxx Xxxxxxxxxxxx xx Xxxxx Xxxxxxxx 000000 Square Feet 5.72000
000 Xxxxxxxx Xxxxxxxxxx 000 Xxxxx 5.73000
000 Xxxxxxxx Xxxxxx 328 Pads 5.79120
000 Xxxxxxxxx Xxxx Xxxxxx Xxxxxxxx 00000 Xxxxxx Feet 5.76000
000 Xxxxxxxx Xxxxxx I 59665 Square Feet 5.67000
117 AT&T Beaumont Call Centre 141525 Square Feet 5.87400
118 Pure Resources Office Building 182062 Square Feet 5.71000
000 Xxx Xxxxxxx V 83773 Square Feet 5.70150
000 Xxxxxxxx Xxxx Xxxxxx & Xxxxx Xxxx 161 Rooms 6.13050
000 Xxxxxxxxxxx Xxxxxxxxxxx 00000 Xxxxxx Feet 5.67000
122 Xxxxx Four 81180 Square Feet 5.78000
000 Xxxxxxx'x Xxxxxxx 00000 Xxxxxx Feet 5.96900
000 Xxxxxx Xxxxxxx 194 Pads 5.79120
125 Edgebrook 247 Pads 5.79120
000 Xxxxxxxx Xxxxxxx 193 Pads 5.79120
127 Holiday Inn North Haven 143 Rooms 6.26000
000 Xxxxxxxxxxx 000 Xxxxx 5.85000
000 Xxxxxxxx Xxxxxx - Xxxxx 000 Rooms 5.87750
130 Xxxxxxxx Corridor Office 62200 Square Feet 5.86050
000 Xxxxx Xxxxxxxx Shopping Center 47343 Square Feet 6.15000
000 Xxxxx Xxxxx Xxxxxxxx Xxxxxx 000000 Xxxxxx Feet 5.62000
000 Xxxxxxx Xxx Villas Apartments 200 Units 6.18000
134 Oceanside 42646 Square Feet 5.89000
000 Xxxxx Xxxxx Xxxxxxx 216 Pads 5.79120
136 New Town Properties 66 Units 5.60200
137 Hampton Inn Juno Beach 90 Rooms 5.45800
138 Mesa Verde Apartments 274 Units 5.92000
139 Villas De Nolana 120 Units 6.42000
140 000/000 Xxxxxx Xxxxxx 40523 Square Feet 5.73100
000 Xxx Xxxxxxx Xxxx 00000 Xxxxxx Feet 5.72000
000 Xxxxx Xxxxxx Xxxxxx - Xxxx, XX 00000 Square Feet 6.14000
143 0000 Xxxxxx Xxxxxxxxx 00000 Xxxxxx Feet 5.82000
000 Xxxxxxxxx Xxx XX 104 Rooms 5.75800
000 Xxxxxxxxx Xxxxxxx 168 Pads 5.82120
000 Xxxxxxxxx XXX 000 Pads 5.62900
000 XXXX Xxxxxxxx 00000 Xxxxxx Feet 5.71000
148 20 Research Place 40996 Square Feet 5.84000
000 Xxxxxxxxx 000 Xxxxx 5.85000
000 Xxxxxx Xxxxxx Xxxxx 00000 Square Feet 5.80000
000 Xxxxxxxxx Xxxxx Apartments 58 Units 5.84000
000 Xxxxxx Xxxxxxx - Xxxxxx, XX 00000 Square Feet 5.66000
000 Xxxxxxxxx Xxxx 00000 Xxxxxx Feet 5.86000
000 Xxxxxxxx Xxxxx 142 Pads 5.79120
155 Fat Cats Portfolio 65579 Square Feet 6.55000
155.01 Xxxx Xxxx Xxxx 00000 Square Feet 6.55000
155.02 Provo 24043 Square Feet 6.55000
000 Xxxxxxxxx Xxxxxx Xxxxx 00000 Xxxxxx Feet 5.91000
000 Xxxxxxx Xxx Xxxxxxx - Xxxxxxx, XX 107 Rooms 5.95000
158 All Storage Trinity Precinct 637 Xxxxx 0.00000
000 Xxxxxxx Xxxxxxxxx - XX 00000 Square Feet 5.87000
159.01 00000 Xxxxxxxxxx Xxxx 00000 Xxxxxx Feet 5.87000
159.02 00000 Xxxxxxxxxx Xxxx 8000 Square Feet 5.87000
159.03 00000 Xxxxxxxxxx Xxxx 6400 Square Feet 5.87000
000 Xxxxxxxx Xxxxx 00000 Xxxxxx Feet 5.90000
161 All Storage Xxxxx Old Mill 684 Units 5.54900
162 University Park Apartments Purdue 64 Units 5.62600
163 Valley Oaks 132 Pads 5.79120
000 Xxxxxxx Xxx - Xxxxxx Xxxxx 80 Rooms 5.81930
165 Xxxxxx Higher Education Building 50000 Square Feet 6.09000
000 Xxxxx Xxxxx Xxxxxx 00000 Xxxxxx Feet 5.86000
000 Xxxxxxx Xxxxxx Xxxxxx - XX 00000 Square Feet 7.60000
168 2150/2250 Xxxxxxxxxxx 53535 Square Feet 5.80250
000 Xxxx Xxxxxxx Xxxxx 000000 Xxxxxx Feet 5.89250
170 Xxxx Self Storage - Montville LLC 793 Units 5.78450
171 Holiday Inn Express - Wakefield 94 Rooms 5.53550
172 Promax Logistics 200783 Square Feet 5.89400
000 Xxxxxx Xxxxx Xxxxxx 00000 Xxxxxx Feet 5.87000
000 Xxxxxxx Xxx 00 Xxxxx 0.00000
000 Xxxxx Xxxxxx Xxxxx 00000 Xxxxxx Feet 5.92000
176 X.X. Xxxxxx Xx. 00000 Square Feet 5.86700
000 Xxxxxxx Xxxxxx 00000 Xxxxxx Feet 5.60200
178 0000 Xxxxxxx Xxxxxx 00000 Xxxxxx Feet 6.06000
000 Xxxxxxxxx Xxxxxxx 000 Xxxx 0.00000
000 Xxxxxxxx Xxxxxxx 183 Pads 5.79120
181 0000 Xxxxxxxx Xxxxxx 00000 Xxxxxx Feet 5.94000
000 Xxxxxxx Xxxx 00000 Xxxxxx Feet 5.80000
000 Xxxxxxxx Xxxxx Xxxxxxxxxx 000 Xxxxx 5.62500
000 Xxxxxxx Xxxxxx - Xxxxxxx, XX 00000 Square Feet 5.76000
000 Xxxxxxx Xxxxxxxx 00000 Xxxxxx Feet 5.74000
000 Xxxxxxx Xxxx Xxxx 00000 Xxxxxx Feet 5.63000
000 Xxxxx Xxxxx XXX 000 Pads 5.64900
000 Xxxxx Xxxx Xxxxxxxx Xxxxxx 00000 Square Feet 5.67400
189 Regency Furniture 42000 Square Feet 5.97000
190 All Star Signature Properties 30050 Square Feet 6.04200
191 Shoppes at Xxxxxx Xxxxxxx 00000 Square Feet 5.69000
192 Met Life Building 15075 Square Feet 5.81000
193 Shoppes at Smithbridge and Longwood Office Building 38636 Square Feet 5.94000
193.01 Shoppes at Smithbridge 12636 Square Feet 5.94000
193.02 Longwood Office Building 26000 Square Feet 5.94000
000 Xxxxx Xxxxx Xxxxxxx 188 Pads 5.79120
000 Xxxxxx Xxxxx Xxxxxxxxxx 000 Xxxxx 5.74500
196 00 Xxxxxxx Xxxx Xxxxx 00000 Xxxxxx Feet 5.66000
197 Holiday Inn - Weirton 118 Rooms 5.73550
198 The Examiner Building 42304 Square Feet 5.70800
000 Xxxxxxxxx Xxxxxx Xxxxxxxx 00000 Xxxxxx Feet 5.66000
200 Worldwide Xxxxxxxxx Xxxxx Xxxxxxxx 00000 Square Feet 5.81000
201 Hampton Inn - Gainesville 74 Rooms 5.75300
000 Xxxxxxxx Xxxxx Xxxxxxxxxx 000 Xxxxx 5.82600
203 5050 Veterans Memorial 51540 Square Feet 6.02000
204 Stock Building Supply 95379 Square Feet 5.80000
000 Xxxxxxxxx Xxxxxxxxxx 000 Xxxxx 5.60400
206 Countryside Portfolio 276 Pads 5.62900
206.01 Countryside 205 Pads 5.62900
206.02 WRBCO Inc 71 Pads 5.62900
000 Xxxxxxxx Xxxxxxxxxx 000 Xxxxx 5.73000
208 000 Xxxxxx Xxxxx 00000 Xxxxxx Feet 6.47000
209 Feathersound Publix 28800 Square Feet 5.63600
210 000 Xxxxxxxx Xxxxxx 71 Units 5.79150
211 0 Xxxx Xxxxxx Xxxxx 00000 Xxxxxx Feet 5.80100
000 Xxxxxxxx Xxxxxxxx Xxxxxx 000000 Xxxxxx Feet 5.64100
000 Xxxxxxxxxx Xxxxxx Shopping Center 67459 Square Feet 6.13000
000 Xxxxxx Xxxxxx Xxxxxx 00000 Xxxxxx Feet 5.88000
000 Xxxxxxxxx - Xx. Xxxxxx, XX 000000 Square Feet 6.00000
216 Gold's Gym - Greenville 40000 Square Feet 5.66000
000 Xxxxxxxx Xxxxxxxx Xxxxxx 00000 Xxxxxx Feet 5.76700
218 Xxxx Gardens Apartments 66 Units 6.24000
219 AFW Building 122333 Square Feet 5.95000
220 4783 Xxxxxxx Xxxx 00000 Square Feet 5.78050
221 Belvedere Parking Garage 302 Units 5.87000
222 Petco 15000 Square Feet 5.80000
223 Regency Apartments 88 Units 5.92200
224 Autrans USA 152000 Square Feet 5.89400
225 Redwood 361 Pads/Units 5.79120
226 0000 Xxxxxxxxxx Xxxxxx 47 Units 5.56700
000 Xxxxxxxx Xxxxx 00000 Xxxxxx Feet 5.83360
228 X'Xxxxxx Crossing 18250 Square Feet 5.85000
000 Xxxx xx Xxxxx Xxxxxxxxxx 00 Units 5.88000
230 Pathmark Supermarket 50000 Square Feet 5.76000
231 Riviera Heights MHC 163 Pads 5.63900
000 Xxxxxxx Xxx Xxx Xxxxx 62 Rooms 6.10650
000 Xxxxxxxxx Xxxxx 00000 Xxxxxx Feet 5.69800
234 Village at Xxxxxxxxx Apartments 64 Units 6.08650
235 Office Max - Xxxx, XX 00000 Square Feet 5.69000
000 Xxxxxxx Xxxx Xxxxxxx MHC 213 Pads 5.62900
237 0000-0000 Xxxx Xxxxxxxxx Xxxx 9009 Square Feet 5.79300
238 La Xxxxx Xxxxxxxxxx 00 Xxxxx 0.00000
000 XXXX 91740 Square Feet 5.69800
000 Xxxxxxxx Xxxxx 00000 Xxxxxx Feet 5.76000
000 Xxxxxxxx Xxxxxxx 00000 Xxxxxx Feet 5.92950
242 Rite Aide - Xxxxxxxxxx, XX 00000 Square Feet 6.75000
#N/A #N/A #N/A #N/A
Loan # Net Mortgage Interest Rate Original Balance Cutoff Balance Term Rem. Term Maturity/ARD Date Amort. Term
------ -------------------------- ---------------- -------------- ---- --------- ----------------- -----------
1 5.47237 225,000,000 225,000,000 120 117 03/01/17 0
2 5.41487 110,000,000 110,000,000 120 118 04/01/17 0
3 5.77787 85,000,000 85,000,000 120 118 04/01/17 360
4 5.81937 65,000,000 65,000,000 84 82 04/01/14 0
5 5.69337 60,000,000 60,000,000 120 118 04/01/17 0
5.01 16,234,000 16,234,000 120 118 04/01/17 0
5.02 9,224,000 9,224,000 120 118 04/01/17 0
5.03 6,530,000 6,530,000 120 118 04/01/17 0
5.04 3,616,000 3,616,000 120 118 04/01/17 0
5.05 3,449,000 3,449,000 120 118 04/01/17 0
5.06 3,210,000 3,210,000 120 118 04/01/17 0
5.07 3,018,000 3,018,000 120 118 04/01/17 0
5.08 2,656,000 2,656,000 120 118 04/01/17 0
5.09 2,214,000 2,214,000 120 118 04/01/17 0
5.1 1,992,000 1,992,000 120 118 04/01/17 0
5.11 1,918,000 1,918,000 120 118 04/01/17 0
5.12 1,771,000 1,771,000 120 118 04/01/17 0
5.13 1,512,000 1,512,000 120 118 04/01/17 0
5.14 1,402,000 1,402,000 120 118 04/01/17 0
5.15 1,254,000 1,254,000 120 118 04/01/17 0
6 6.16937 51,500,000 51,500,000 60 60 06/01/12 360
7 5.65387 45,000,000 45,000,000 120 118 04/01/17 360
8 5.84937 44,000,000 43,879,038 120 117 03/01/17 360
9 5.55687 39,800,000 39,800,000 120 120 06/01/17 360
10 5.72287 38,000,000 38,000,000 120 119 05/01/17 360
11 5.79937 38,000,000 38,000,000 120 119 05/01/17 0
12 5.83964 36,500,000 36,500,000 120 118 04/01/17 360
12.01 17,430,000 17,430,000 120 118 04/01/17 360
12.02 6,250,000 6,250,000 120 118 04/01/17 360
12.03 4,300,000 4,300,000 120 118 04/01/17 360
12.04 2,580,000 2,580,000 120 118 04/01/17 360
12.05 1,800,000 1,800,000 120 118 04/01/17 360
12.06 1,720,000 1,720,000 120 118 04/01/17 360
12.07 1,250,000 1,250,000 120 118 04/01/17 360
12.08 1,170,000 1,170,000 120 118 04/01/17 360
13 5.71937 36,500,000 36,500,000 120 119 05/01/17 0
13.01 23,400,000 23,400,000 120 119 05/01/17 0
13.02 13,100,000 13,100,000 120 119 05/01/17 0
14 5.64937 35,500,000 35,500,000 120 117 03/01/17 0
15 5.67487 35,432,000 35,432,000 120 119 05/01/17 0
16 5.37537 35,000,000 35,000,000 109 104 02/01/16 0
16.01 4,384,000 4,384,000 109 104 02/01/16 0
16.02 3,240,000 3,240,000 109 104 02/01/16 0
16.03 2,941,400 2,941,400 109 104 02/01/16 0
16.04 2,760,000 2,760,000 109 104 02/01/16 0
16.05 2,494,800 2,494,800 109 104 02/01/16 0
16.06 2,186,800 2,186,800 109 104 02/01/16 0
16.07 1,909,600 1,909,600 109 104 02/01/16 0
16.08 1,886,500 1,886,500 109 104 02/01/16 0
16.09 1,617,000 1,617,000 109 104 02/01/16 0
16.1 1,520,000 1,520,000 109 104 02/01/16 0
16.11 1,493,800 1,493,800 109 104 02/01/16 0
16.12 1,475,100 1,475,100 109 104 02/01/16 0
16.13 1,278,200 1,278,200 109 104 02/01/16 0
16.14 1,178,100 1,178,100 109 104 02/01/16 0
16.15 1,062,600 1,062,600 109 104 02/01/16 0
16.16 876,000 876,000 109 104 02/01/16 0
16.17 870,100 870,100 109 104 02/01/16 0
16.18 685,000 685,000 109 104 02/01/16 0
16.19 660,000 660,000 109 104 02/01/16 0
16.2 481,000 481,000 109 104 02/01/16 0
17 5.71377 35,000,000 35,000,000 120 118 04/01/17 0
18 5.58337 35,000,000 34,846,323 120 118 04/01/17 240
19 5.69937 32,000,000 32,000,000 120 118 04/01/17 360
19.01 7,800,000 7,800,000 120 118 04/01/17 360
19.02 7,110,000 7,110,000 120 118 04/01/17 360
19.03 6,400,000 6,400,000 120 118 04/01/17 360
19.04 2,960,000 2,960,000 120 118 04/01/17 360
19.05 2,160,000 2,160,000 120 118 04/01/17 360
19.06 1,768,000 1,768,000 120 118 04/01/17 360
19.07 1,760,000 1,760,000 120 118 04/01/17 360
19.08 1,514,000 1,514,000 120 118 04/01/17 360
19.09 528,000 528,000 120 118 04/01/17 360
20 5.67437 31,200,000 31,200,000 120 120 06/01/17 0
21 5.75187 31,000,000 31,000,000 120 120 06/01/17 0
22 5.66937 30,500,000 30,500,000 120 119 05/01/17 360
23 5.85937 29,600,000 29,600,000 120 117 03/01/17 360
24 5.56937 29,200,000 29,200,000 120 117 03/01/17 360
24.01 10,300,000 10,300,000 120 117 03/01/17 360
24.02 10,100,000 10,100,000 120 117 03/01/17 360
24.03 8,800,000 8,800,000 120 117 03/01/17 360
25 5.63937 27,000,000 27,000,000 120 119 05/01/17 0
26 5.88937 27,000,000 27,000,000 120 118 04/01/17 360
27 5.73937 27,000,000 26,963,898 60 59 05/01/12 300
28 5.78937 26,700,000 26,700,000 120 120 06/01/17 0
29 5.79937 26,500,000 26,500,000 120 119 05/01/17 360
30 5.59437 26,480,000 26,480,000 120 119 05/01/17 0
31 6.05937 26,000,000 25,892,618 240 238 04/01/27 240
32 6.39937 24,800,000 24,800,000 120 119 05/01/17 360
33 6.18937 24,700,000 24,700,000 120 120 06/01/17 360
34 5.71937 24,500,000 24,500,000 120 118 04/01/17 360
35 5.75937 22,000,000 22,000,000 120 119 05/01/17 360
36 6.43937 21,500,000 21,500,000 120 120 06/01/17 360
37 5.59437 21,350,000 21,350,000 120 119 05/01/17 0
38 5.85287 21,300,000 21,300,000 120 117 03/01/17 360
39 5.95537 21,000,000 21,000,000 120 113 11/01/16 360
40 5.60087 21,000,000 21,000,000 120 119 05/01/17 0
41 6.02937 21,000,000 21,000,000 120 120 06/01/17 360
42 5.49937 19,600,000 19,572,570 120 119 05/01/17 300
43 6.74937 19,200,000 19,187,144 60 59 05/01/12 360
44 5.56937 19,100,000 19,100,000 120 117 03/01/17 360
44.01 10,900,000 10,900,000 120 117 03/01/17 360
44.02 8,200,000 8,200,000 120 117 03/01/17 360
45 5.49937 19,100,000 19,073,270 120 119 05/01/17 300
46 5.86937 18,750,000 18,750,000 120 120 06/01/17 360
47 5.64687 18,500,000 18,483,293 120 119 05/01/17 360
47.01 6,600,000 6,594,040 120 119 05/01/17 360
47.02 6,000,000 5,994,582 120 119 05/01/17 360
47.03 5,900,000 5,894,672 120 119 05/01/17 360
48 5.81937 18,000,000 18,000,000 120 117 03/01/17 360
49 6.12137 17,600,000 17,600,000 120 118 04/01/17 360
50 5.58937 17,400,000 17,400,000 120 119 05/01/17 0
51 5.70137 16,750,000 16,750,000 120 119 05/01/17 0
52 5.77887 16,550,000 16,550,000 120 119 05/01/17 0
53 5.64937 16,500,000 16,500,000 120 119 05/01/17 360
54 5.58937 16,500,000 16,500,000 60 58 04/01/12 0
55 5.61937 16,000,000 16,000,000 120 119 05/01/17 0
56 5.67937 16,000,000 16,000,000 120 120 06/01/17 0
57 5.89937 16,000,000 16,000,000 120 117 03/01/17 360
58 5.93937 16,000,000 16,000,000 120 117 03/01/17 360
59 5.64237 15,800,000 15,800,000 120 115 01/01/17 360
59.01 9,200,000 9,200,000 120 115 01/01/17 360
59.02 6,600,000 6,600,000 120 115 01/01/17 360
60 5.77057 15,200,000 15,200,000 120 118 04/01/17 0
61 5.55637 15,200,000 15,200,000 120 118 04/01/17 0
62 5.66337 15,000,000 15,000,000 120 119 05/01/17 360
63 5.71337 15,000,000 15,000,000 120 118 04/01/17 0
64 5.93437 15,000,000 15,000,000 120 118 04/01/17 360
65 5.67937 15,000,000 15,000,000 120 119 05/01/17 0
66 5.51937 15,000,000 15,000,000 120 119 05/01/17 360
67 5.67087 14,700,000 14,700,000 120 119 05/01/17 360
68 5.87937 14,400,000 14,387,748 120 119 05/01/17 360
69 5.86937 14,200,000 14,200,000 120 116 02/01/17 360
70 5.59537 14,172,000 14,172,000 120 118 04/01/17 0
70.01 3,280,000 3,280,000 120 118 04/01/17 0
70.02 1,840,000 1,840,000 120 118 04/01/17 0
70.03 1,760,000 1,760,000 120 118 04/01/17 0
70.04 1,360,000 1,360,000 120 118 04/01/17 0
70.05 1,208,000 1,208,000 120 118 04/01/17 0
70.06 1,048,000 1,048,000 120 118 04/01/17 0
70.07 872,000 872,000 120 118 04/01/17 0
70.08 592,000 592,000 120 118 04/01/17 0
70.09 568,000 568,000 120 118 04/01/17 0
70.1 520,000 520,000 120 118 04/01/17 0
70.11 432,000 432,000 120 118 04/01/17 0
70.12 384,000 384,000 120 118 04/01/17 0
70.13 308,000 308,000 120 118 04/01/17 0
71 5.59937 14,000,000 14,000,000 120 118 04/01/17 360
72 5.63737 13,500,000 13,500,000 120 117 03/01/17 0
73 5.67937 13,350,000 13,350,000 120 118 04/01/17 0
74 5.77057 13,280,000 13,280,000 120 118 04/01/17 0
76 6.51037 13,140,000 13,124,921 120 119 05/01/17 300
77 6.22937 13,000,000 13,000,000 60 60 06/01/12 0
78 5.74937 13,000,000 13,000,000 120 119 05/01/17 360
79 5.58937 13,000,000 12,988,089 120 119 05/01/17 360
80 5.48937 12,700,000 12,700,000 120 119 05/01/17 0
81 5.66087 12,500,000 12,500,000 120 118 04/01/17 360
82 5.65587 12,500,000 12,500,000 120 119 05/01/17 360
83 5.95937 12,000,000 12,000,000 120 117 03/01/17 360
84 5.60937 12,000,000 12,000,000 120 119 05/01/17 360
85 5.75937 11,920,000 11,920,000 120 118 04/01/17 360
86 5.77057 11,704,000 11,704,000 120 118 04/01/17 0
87 5.69937 11,680,000 11,680,000 120 119 05/01/17 360
88 5.86137 11,550,000 11,518,703 120 117 03/01/17 360
89 5.87637 11,500,000 11,500,000 120 120 06/01/17 360
90 5.82937 11,500,000 11,500,000 120 117 03/01/17 360
91 5.53937 11,500,000 11,500,000 120 117 03/01/17 360
92 5.75937 11,400,000 11,400,000 120 119 05/01/17 0
93 5.82287 11,000,000 11,000,000 120 117 03/01/17 360
94 5.77937 10,500,000 10,500,000 120 120 06/01/17 300
94.01 5,250,000 5,250,000 120 120 06/01/17 300
94.02 5,250,000 5,250,000 120 120 06/01/17 300
95 5.89537 10,250,000 10,250,000 120 120 06/01/17 360
96 5.72097 10,230,000 10,230,000 120 118 04/01/17 360
97 5.94937 10,100,000 10,091,562 120 119 05/01/17 360
98 5.67937 10,000,000 10,000,000 120 118 04/01/17 360
99 5.65087 9,975,000 9,975,000 120 116 02/01/17 360
100 5.62937 9,900,000 9,900,000 120 118 04/01/17 0
101 5.66937 9,800,000 9,800,000 120 120 06/01/17 360
102 5.93937 9,750,000 9,750,000 60 56 02/01/12 360
103 5.65937 9,680,000 9,660,994 120 118 04/01/17 360
104 5.79937 9,600,000 9,600,000 120 120 06/01/17 360
105 5.94937 9,525,000 9,525,000 60 57 03/01/12 360
106 5.67937 9,500,000 9,500,000 120 118 04/01/17 360
107 5.50937 9,300,000 9,300,000 120 120 06/01/17 360
108 5.77937 9,300,000 9,300,000 120 120 06/01/17 360
109 5.56637 9,100,000 9,100,000 120 118 04/01/17 360
110 5.72937 9,000,000 9,000,000 120 118 04/01/17 360
111 5.57887 9,000,000 8,982,017 120 118 04/01/17 360
112 5.69937 8,900,000 8,900,000 120 120 06/01/17 360
113 5.70937 8,800,000 8,800,000 120 118 04/01/17 360
114 5.77057 8,648,000 8,648,000 120 118 04/01/17 0
115 5.73937 8,640,000 8,640,000 120 119 05/01/17 360
116 5.64937 8,600,000 8,600,000 120 120 06/01/17 360
117 5.85337 8,592,000 8,592,000 120 118 04/01/17 0
118 5.68937 8,400,000 8,400,000 120 119 05/01/17 360
119 5.68087 8,350,000 8,350,000 120 118 04/01/17 360
120 6.10987 8,300,000 8,300,000 120 120 06/01/17 360
121 5.64937 8,300,000 8,300,000 120 118 04/01/17 360
122 5.75937 8,200,000 8,200,000 120 119 05/01/17 360
123 5.90837 8,135,000 8,135,000 120 119 05/01/17 360
124 5.77057 8,120,000 8,120,000 120 118 04/01/17 0
125 5.77057 8,120,000 8,120,000 120 118 04/01/17 0
126 5.77057 8,000,000 8,000,000 120 118 04/01/17 0
127 6.19937 8,000,000 7,969,422 120 116 02/01/17 360
128 5.82937 7,800,000 7,800,000 120 117 03/01/17 360
129 5.85687 7,750,000 7,743,368 120 119 05/01/17 360
130 5.83987 7,600,000 7,600,000 120 118 04/01/17 360
131 6.12937 7,600,000 7,600,000 60 60 06/01/12 360
132 5.59937 7,500,000 7,500,000 120 116 02/01/17 360
133 6.15937 7,500,000 7,500,000 60 60 06/01/12 360
134 5.86937 7,426,000 7,426,000 120 119 05/01/17 0
135 5.77057 7,300,000 7,300,000 120 118 04/01/17 0
136 5.58137 7,168,000 7,168,000 120 119 05/01/17 360
137 5.38737 7,000,000 7,000,000 120 119 05/01/17 0
138 5.89937 7,000,000 7,000,000 120 119 05/01/17 360
139 6.39937 7,000,000 6,994,821 115 114 12/01/16 360
140 5.71037 7,000,000 6,993,780 120 119 05/01/17 360
141 5.69937 6,920,000 6,913,833 120 119 05/01/17 360
142 6.11937 6,880,000 6,853,094 120 116 02/01/17 360
143 5.79937 6,640,000 6,640,000 120 115 01/01/17 360
144 5.73737 6,600,000 6,600,000 120 117 03/01/17 0
145 5.80057 6,560,000 6,560,000 120 118 04/01/17 0
146 5.60837 6,500,000 6,500,000 120 118 04/01/17 0
147 5.68937 6,500,000 6,494,193 120 119 05/01/17 360
148 5.81937 6,500,000 6,482,006 120 117 03/01/17 360
149 5.82937 6,400,000 6,400,000 120 117 03/01/17 360
150 5.68937 6,400,000 6,400,000 120 118 04/01/17 360
151 5.81937 6,400,000 6,400,000 120 118 04/01/17 0
152 5.63937 6,344,000 6,344,000 120 118 04/01/17 360
153 5.83937 6,300,000 6,300,000 120 120 06/01/17 360
154 5.77057 6,230,000 6,230,000 120 118 04/01/17 0
155 6.52937 6,250,000 6,225,730 120 118 04/01/17 240
155.01 3,900,000 3,884,855 120 118 04/01/17 240
155.02 2,350,000 2,340,874 120 118 04/01/17 240
156 5.88937 6,200,000 6,200,000 120 118 04/01/17 360
157 5.90937 6,100,000 6,094,877 120 119 05/01/17 360
158 5.52837 6,050,000 6,044,371 120 119 05/01/17 360
159 5.84937 6,000,000 5,988,701 120 118 04/01/17 360
159.01 4,020,000 4,012,430 120 118 04/01/17 360
159.02 1,110,000 1,107,910 120 118 04/01/17 360
159.03 870,000 868,362 120 118 04/01/17 360
160 5.78937 5,900,000 5,900,000 120 115 01/01/17 360
161 5.52837 5,880,000 5,874,529 120 119 05/01/17 360
162 5.56537 5,800,000 5,800,000 120 118 04/01/17 360
163 5.77057 5,680,000 5,680,000 120 118 04/01/17 0
164 5.72867 5,650,000 5,645,091 120 119 05/01/17 360
165 6.06937 5,600,000 5,600,000 60 60 06/01/12 360
166 5.78937 5,600,000 5,600,000 120 119 05/01/17 360
167 7.52937 5,600,000 5,593,009 120 118 04/01/17 360
168 5.73187 5,592,000 5,587,121 120 119 05/01/17 360
169 5.87187 5,600,000 5,567,286 120 114 12/01/16 360
170 5.76387 5,500,000 5,500,000 120 118 04/01/17 300
171 5.51487 5,500,000 5,492,325 120 119 05/01/17 300
172 5.87337 5,500,000 5,477,464 120 116 02/01/17 360
173 5.84937 5,450,000 5,450,000 120 117 03/01/17 360
174 5.75087 5,400,000 5,400,000 120 117 03/01/17 360
175 5.89937 5,400,000 5,400,000 120 117 03/01/17 360
176 5.84637 5,400,000 5,389,824 144 142 04/01/19 360
177 5.58137 5,400,000 5,384,211 120 117 03/01/17 360
178 6.03937 5,380,000 5,380,000 120 119 05/01/17 360
179 5.76057 5,360,000 5,360,000 120 118 04/01/17 0
180 5.77057 5,280,000 5,280,000 120 118 04/01/17 0
181 5.91937 5,275,000 5,275,000 120 117 03/01/17 360
182 5.77937 5,250,000 5,250,000 120 120 06/01/17 0
183 5.55437 5,200,000 5,200,000 120 118 04/01/17 360
184 5.69937 5,200,000 5,200,000 120 118 04/01/17 360
185 5.71937 5,100,000 5,100,000 120 118 04/01/17 360
186 5.60937 5,075,000 5,075,000 120 120 06/01/17 360
187 5.62837 5,000,000 5,000,000 120 118 04/01/17 0
188 5.65337 4,900,000 4,900,000 120 120 06/01/17 360
189 5.94937 4,892,000 4,887,913 120 119 05/01/17 360
190 6.02137 4,800,000 4,783,282 120 118 04/01/17 264
191 5.61937 4,700,000 4,700,000 120 116 02/01/17 360
192 5.78937 4,700,000 4,700,000 120 118 04/01/17 360
193 5.91937 4,672,000 4,672,000 120 119 05/01/17 360
193.01 2,422,000 2,422,000 120 119 05/01/17 360
193.02 2,250,000 2,250,000 120 119 05/01/17 360
194 5.77057 4,650,000 4,650,000 120 118 04/01/17 0
195 5.72437 4,600,000 4,600,000 120 119 05/01/17 360
196 5.63937 4,550,000 4,550,000 120 117 03/01/17 360
197 5.71487 4,500,000 4,500,000 120 120 06/01/17 360
198 5.68737 4,500,000 4,500,000 120 118 04/01/17 0
199 5.63937 4,500,000 4,500,000 120 118 04/01/17 360
200 5.78937 4,500,000 4,500,000 120 120 06/01/17 0
201 5.66237 4,500,000 4,493,975 120 119 05/01/17 300
202 5.80537 4,400,000 4,400,000 120 119 05/01/17 360
203 5.99937 4,360,000 4,360,000 120 119 05/01/17 360
204 5.77937 4,300,000 4,291,776 120 118 04/01/17 360
205 5.58337 4,250,000 4,250,000 120 118 04/01/17 360
206 5.60837 4,200,000 4,200,000 120 118 04/01/17 0
206.01 2,850,000 2,850,000 120 118 04/01/17 0
206.02 1,350,000 1,350,000 120 118 04/01/17 0
207 5.70937 4,200,000 4,200,000 120 118 04/01/17 360
208 6.44937 4,200,000 4,189,453 120 118 04/01/17 300
209 5.61537 4,150,000 4,146,222 120 119 05/01/17 360
210 5.77087 4,100,000 4,100,000 120 118 04/01/17 360
211 5.78037 4,000,000 4,000,000 120 118 04/01/17 360
212 5.62037 4,000,000 4,000,000 120 120 06/01/17 360
213 6.10937 4,000,000 4,000,000 120 120 06/01/17 360
214 5.85937 4,000,000 4,000,000 120 120 06/01/17 360
215 5.97937 4,000,000 3,994,895 120 119 05/01/17 300
216 5.63937 4,000,000 3,992,112 120 118 04/01/17 360
217 5.74637 4,000,000 3,988,647 120 118 04/01/17 300
218 6.21937 3,960,000 3,960,000 84 84 06/01/14 360
219 5.92937 3,900,000 3,866,849 120 114 12/01/16 300
220 5.75987 3,800,000 3,789,334 120 117 03/01/17 360
221 5.84937 3,650,000 3,650,000 120 120 06/01/17 360
222 5.77937 3,600,000 3,600,000 120 120 06/01/17 0
223 5.90137 3,500,000 3,500,000 120 118 04/01/17 360
224 5.87337 3,500,000 3,485,659 120 116 02/01/17 360
225 5.77057 3,472,000 3,472,000 120 118 04/01/17 0
226 5.54637 3,440,000 3,440,000 120 117 03/01/17 360
227 5.75297 3,320,000 3,320,000 120 117 03/01/17 360
228 5.73937 3,150,000 3,150,000 120 119 05/01/17 360
229 5.85937 3,011,000 3,011,000 60 58 04/01/12 360
230 5.73937 3,000,000 3,000,000 120 120 06/01/17 0
231 5.61837 3,000,000 3,000,000 120 118 04/01/17 0
232 6.03587 3,000,000 2,992,199 120 117 03/01/17 360
233 5.67737 3,000,000 2,991,418 120 117 03/01/17 360
234 6.06587 2,912,000 2,904,392 120 117 03/01/17 360
235 5.66937 2,850,000 2,850,000 120 119 05/01/17 360
236 5.60837 2,600,000 2,600,000 120 118 04/01/17 0
237 5.77237 2,575,000 2,575,000 120 119 05/01/17 360
238 5.78937 2,400,000 2,400,000 120 118 04/01/17 360
239 5.67737 2,325,000 2,318,349 120 117 03/01/17 360
240 5.73937 2,300,000 2,300,000 120 118 04/01/17 360
241 5.81887 2,150,000 2,150,000 120 118 04/01/17 360
242 6.72937 1,000,000 997,779 120 117 03/01/17 360
#N/A #N/A #N/A #N/A #N/A #N/A #N/A
Loan # Rem. Amort. Monthly Debt Service Servicing Fee Rate Accrual Type ARD (Y/N) ARD Step Up (%) Title Type
------ ----------- -------------------- ------------------ ------------ --------- --------------- -------------
1 0 1,044,242 0.02000 Actual/360 No Fee
2 0 505,174 0.02000 Actual/360 No Fee
3 360 498,659 0.02000 Actual/360 No Fee
4 0 320,727 0.02000 Actual/360 No Fee
5 0 289,668 0.02000 Actual/360 No Fee
5.01 0 Actual/360 No Fee
5.02 0 Actual/360 No Fee
5.03 0 Actual/360 No Fee
5.04 0 Actual/360 No Fee
5.05 0 Actual/360 No Fee
5.06 0 Actual/360 No Fee
5.07 0 Actual/360 No Fee
5.08 0 Actual/360 No Fee
5.09 0 Actual/360 No Fee
5.1 0 Actual/360 No Fee
5.11 0 Actual/360 No Fee
5.12 0 Actual/360 No Fee
5.13 0 Actual/360 No Fee
5.14 0 Actual/360 No Fee
5.15 0 Actual/360 No Fee
6 360 316,090 0.05000 Actual/360 No Fee/Leasehold
7 360 260,453 0.02000 Actual/360 No Fee/Leasehold
8 357 260,136 0.02000 Actual/360 No Fee
9 360 228,546 0.04500 Actual/360 No Fee
10 360 221,601 0.02000 Actual/360 No Fee
11 0 186,860 0.02000 Actual/360 No Fee
12 360 215,568 0.02000 Actual/360 No Fee
12.01 360 Actual/360 No Fee
12.02 360 Actual/360 No Fee
12.03 360 Actual/360 No Fee
12.04 360 Actual/360 No Fee
12.05 360 Actual/360 No Fee
12.06 360 Actual/360 No Fee
12.07 360 Actual/360 No Fee
12.08 360 Actual/360 No Fee
13 0 177,017 0.02000 Actual/360 No Fee
13.01 0 Actual/360 No Fee
13.02 0 Actual/360 No Fee
14 0 170,067 0.02000 Actual/360 No Fee
15 0 170,505 0.02000 Actual/360 No Fee
16 0 159,569 0.02000 Actual/360 No Fee
16.01 0 Actual/360 No Fee
16.02 0 Actual/360 No Fee
16.03 0 Actual/360 No Fee
16.04 0 Actual/360 No Fee
16.05 0 Actual/360 No Fee
16.06 0 Actual/360 No Fee
16.07 0 Actual/360 No Fee
16.08 0 Actual/360 No Fee
16.09 0 Actual/360 No Fee
16.1 0 Actual/360 No Fee
16.11 0 Actual/360 No Fee
16.12 0 Actual/360 No Fee
16.13 0 Actual/360 No Fee
16.14 0 Actual/360 No Fee
16.15 0 Actual/360 No Fee
16.16 0 Actual/360 No Fee
16.17 0 Actual/360 No Fee
16.18 0 Actual/360 No Fee
16.19 0 Actual/360 No Fee
16.2 0 Actual/360 No Fee
17 0 169,576 0.02000 Actual/360 No Fee
18 238 242,821 0.02000 Actual/360 No Fee
19 360 186,134 0.02000 Actual/360 No Fee
19.01 360 Actual/360 No Fee
19.02 360 Actual/360 No Fee
19.03 360 Actual/360 No Fee
19.04 360 Actual/360 No Fee
19.05 360 Actual/360 No Fee
19.06 360 Actual/360 No Fee
19.07 360 Actual/360 No Fee
19.08 360 Actual/360 No Fee
19.09 360 Actual/360 No Fee
20 0 150,127 0.02000 Actual/360 No Fee
21 0 151,194 0.02000 Actual/360 No Fee
22 360 176,829 0.02000 Actual/360 No Fee
23 360 175,190 0.02000 Actual/360 No Fee
24 360 167,447 0.02000 Actual/360 No Fee
24.01 360 Actual/360 No Fee
24.02 360 Actual/360 No Fee
24.03 360 Actual/360 No Fee
25 0 129,119 0.02000 Actual/360 No Fee
26 360 160,320 0.02000 Actual/360 No Fee
27 299 170,022 0.02000 Actual/360 No Fee
28 0 131,068 0.02000 Actual/360 No Fee
29 360 156,334 0.05000 Actual/360 No Fee
30 0 125,625 0.02000 Actual/360 No Fee
31 238 187,474 0.02000 Actual/360 No Fee/Leasehold
32 360 155,450 0.02000 Actual/360 No Fee
33 360 151,440 0.02000 Actual/360 No Fee
34 360 142,820 0.02000 Actual/360 No Fee
35 360 128,806 0.02000 Actual/360 No Fee
36 360 135,330 0.02000 Actual/360 No Fee
37 0 101,288 0.02000 Actual/360 No Fee/Leasehold
38 360 127,205 0.11000 Actual/360 No Fee
39 360 125,582 0.02000 Actual/360 No Leasehold
40 0 99,743 0.02000 Actual/360 No Fee
41 360 126,581 0.02000 Actual/360 No Fee
42 299 120,595 0.02000 Actual/360 No Fee
43 359 124,786 0.02000 Actual/360 No Fee
44 360 109,529 0.02000 Actual/360 No Fee
44.01 360 Actual/360 No Fee
44.02 360 Actual/360 No Fee
45 299 117,519 0.02000 Actual/360 No Fee
46 360 111,093 0.02000 Actual/360 No Fee
47 359 106,993 0.02000 Actual/360 No Fee
47.01 359 Actual/360 No Fee
47.02 359 Actual/360 No Fee
47.03 359 Actual/360 No Fee
48 360 106,074 0.02000 Actual/360 No Fee
49 360 107,133 0.02000 Actual/360 No Fee
50 0 82,475 0.02000 Actual/360 No Fee
51 0 81,970 0.09000 Actual/360 No Fee
52 0 81,096 0.02000 Actual/360 No Fee
53 360 95,453 0.02000 Actual/360 No Fee
54 0 78,209 0.02000 Actual/360 No Fee
55 0 76,244 0.02000 Actual/360 No Fee
56 0 77,056 0.02000 Actual/360 No Fee
57 360 95,107 0.02000 Actual/360 No Fee
58 360 95,517 0.02000 Actual/360 No Fee
59 360 91,333 0.02000 Actual/360 No Fee
59.01 360 Actual/360 No Fee
59.02 360 Actual/360 No Fee
60 0 74,374 0.02000 Actual/360 No Fee
61 0 71,623 0.02000 Actual/360 No Fee
62 360 86,908 0.02000 Actual/360 No Fee
63 0 73,177 0.06000 Actual/360 No Fee
64 360 89,499 0.02000 30/360 No Fee
65 0 72,240 0.02000 Actual/360 No Fee
66 360 85,545 0.02000 Actual/360 No Fee
67 360 85,240 0.02000 Actual/360 No Fee
68 359 85,412 0.02000 Actual/360 No Leasehold
69 360 84,135 0.02000 Actual/360 No Fee
70 0 67,246 0.02000 Actual/360 No Fee
70.01 0 Actual/360 No Fee
70.02 0 Actual/360 No Fee
70.03 0 Actual/360 No Fee
70.04 0 Actual/360 No Fee
70.05 0 Actual/360 No Fee
70.06 0 Actual/360 No Fee
70.07 0 Actual/360 No Fee
70.08 0 Actual/360 No Fee
70.09 0 Actual/360 No Fee
70.1 0 Actual/360 No Fee
70.11 0 Actual/360 No Fee
70.12 0 Actual/360 No Fee
70.13 0 Actual/360 No Fee
71 360 80,548 0.02000 Actual/360 No Fee
72 0 64,537 0.02000 Actual/360 No Fee
73 0 64,293 0.02000 Actual/360 No Fee
74 0 64,979 0.02000 Actual/360 No Fee
76 299 88,977 0.02000 Actual/360 No Fee
77 0 68,649 0.02000 Actual/360 No Fee
78 360 76,030 0.02000 Actual/360 No Fee
79 359 74,712 0.02000 Actual/360 No Fee
80 0 59,124 0.02000 Actual/360 No Fee
81 360 72,404 0.02000 Actual/360 No Fee
82 360 72,760 0.07000 Actual/360 No Fee
83 360 71,792 0.02000 Actual/360 No Fee
84 360 69,117 0.02000 Actual/360 No Fee
85 360 69,789 0.02000 Actual/360 No Fee
86 0 57,268 0.02000 Actual/360 No Fee
87 360 67,939 0.02000 Actual/360 No Fee
88 357 68,744 0.07000 Actual/360 No Fee
89 360 68,189 0.02000 Actual/360 No Fee
90 360 67,843 0.02000 Actual/360 No Fee
91 360 65,729 0.02000 Actual/360 No Fee
92 0 55,673 0.02000 Actual/360 No Fee
93 360 64,848 0.02000 Actual/360 No Fee
94 300 66,820 0.09000 Actual/360 No Fee
94.01 300 Actual/360 No Fee
94.02 300 Actual/360 No Fee
95 360 60,901 0.02000 Actual/360 No Fee
96 360 59,645 0.02000 Actual/360 No Fee
97 359 60,360 0.02000 Actual/360 No Fee
98 360 58,040 0.02000 Actual/360 No Fee
99 360 58,031 0.07000 Actual/360 No Fee
100 0 47,260 0.02000 Actual/360 No Fee
101 360 57,066 0.06000 Actual/360 No Fee
102 360 58,206 0.02000 Actual/360 No Fee
103 358 56,060 0.02000 Actual/360 No Fee
104 360 56,451 0.02000 Actual/360 No Fee
105 360 56,924 0.02000 Actual/360 No Fee
106 360 55,138 0.02000 Actual/360 No Fee
107 360 52,980 0.02000 Actual/360 No Fee
108 360 54,568 0.02000 Actual/360 No Fee
109 360 52,396 0.06000 Actual/360 No Fee
110 360 52,522 0.02000 Actual/360 No Fee
111 358 51,664 0.02000 Actual/360 No Fee
112 360 51,768 0.02000 Actual/360 No Fee
113 360 51,243 0.02000 Actual/360 No Fee
114 0 42,315 0.02000 Actual/360 No Fee
115 360 50,476 0.02000 Actual/360 No Fee
116 360 49,751 0.02000 Actual/360 No Fee
117 0 42,642 0.02000 Actual/360 No Fee
118 360 48,807 0.02000 Actual/360 No Fee
119 360 48,471 0.02000 Actual/360 No Fee
120 360 50,461 0.02000 Actual/360 No Fee
121 360 48,016 0.02000 Actual/360 No Leasehold
122 360 48,009 0.02000 Actual/360 No Fee
123 360 48,611 0.06000 Actual/360 No Fee
124 0 39,731 0.02000 Actual/360 No Fee
125 0 39,731 0.02000 Actual/360 No Fee
126 0 39,144 0.02000 Actual/360 No Fee
127 356 49,309 0.06000 Actual/360 No Fee
128 360 46,015 0.02000 Actual/360 No Fee
129 359 45,857 0.02000 Actual/360 No Fee
130 360 44,886 0.02000 Actual/360 No Fee
131 360 46,301 0.02000 Actual/360 No Fee
132 360 43,151 0.02000 Actual/360 No Fee
133 360 45,838 0.02000 Actual/360 No Fee
134 0 36,956 0.02000 Actual/360 No Fee
135 0 35,719 0.02000 Actual/360 No Fee
136 360 41,159 0.02000 Actual/360 No Fee
137 0 32,281 0.07000 Actual/360 No Fee
138 360 41,609 0.02000 Actual/360 No Fee
139 359 43,877 0.02000 Actual/360 No Fee
140 359 40,766 0.02000 Actual/360 No Fee
141 359 40,251 0.02000 Actual/360 No Fee
142 356 41,870 0.02000 Actual/360 No Fee
143 360 39,045 0.02000 Actual/360 No Fee
144 0 32,109 0.02000 Actual/360 No Fee
145 0 32,265 0.02000 Actual/360 No Fee
146 0 30,914 0.02000 Actual/360 No Fee
147 359 37,767 0.02000 Actual/360 No Fee
148 357 38,305 0.02000 Actual/360 No Fee
149 360 37,756 0.02000 Actual/360 No Fee
150 360 37,552 0.11000 Actual/360 No Fee
151 0 31,579 0.02000 Actual/360 No Fee
152 360 36,660 0.02000 Actual/360 No Fee
153 360 37,207 0.02000 Actual/360 No Fee
154 0 30,484 0.02000 Actual/360 No Fee
155 238 46,782 0.02000 Actual/360 No Fee
155.01 238 Actual/360 No Fee
155.02 238 Actual/360 No Fee
156 360 36,814 0.02000 Actual/360 No Fee
157 359 36,377 0.04000 Actual/360 No Fee
158 359 34,537 0.02000 Actual/360 No Fee
159 358 35,473 0.02000 Actual/360 No Fee
159.01 358 Actual/360 No Fee
159.02 358 Actual/360 No Fee
159.03 358 Actual/360 No Fee
160 360 34,995 0.11000 Actual/360 No Fee
161 359 33,567 0.02000 Actual/360 No Fee
162 360 33,392 0.06000 Actual/360 No Fee
163 0 27,792 0.02000 Actual/360 No Fee
164 359 33,221 0.09000 Actual/360 No Fee
165 360 33,900 0.02000 Actual/360 No Fee
166 360 33,072 0.07000 Actual/360 No Fee
167 358 39,540 0.07000 Actual/360 No Fee
168 359 32,820 0.07000 Actual/360 No Fee
169 354 33,189 0.02000 Actual/360 No Fee
170 300 34,716 0.02000 Actual/360 No Fee
171 299 33,892 0.02000 Actual/360 No Fee
172 356 32,601 0.02000 Actual/360 No Fee
173 360 32,221 0.02000 Actual/360 No Fee
174 360 31,587 0.02000 Actual/360 No Fee
175 360 32,099 0.02000 Actual/360 No Fee
176 358 31,915 0.02000 Actual/360 No Fee
177 357 31,007 0.02000 Actual/360 No Fee
178 360 32,464 0.02000 Actual/360 No Fee
179 0 26,181 0.02000 Actual/360 No Fee
180 0 25,835 0.02000 Actual/360 No Fee
181 360 31,423 0.02000 Actual/360 No Fee
182 0 25,727 0.02000 Actual/360 No Fee
183 360 29,934 0.07000 Actual/360 No Fee
184 360 30,379 0.06000 Actual/360 No Fee
185 360 29,730 0.02000 Actual/360 No Fee
186 360 29,231 0.02000 Actual/360 No Fee
187 0 23,864 0.02000 Actual/360 No Fee
188 360 28,359 0.02000 Actual/360 No Fee
189 359 29,236 0.02000 Actual/360 No Fee
190 262 32,907 0.02000 Actual/360 No Fee
191 360 27,249 0.07000 Actual/360 No Fee
192 360 27,607 0.02000 Actual/360 No Fee
193 360 27,831 0.02000 Actual/360 No Fee
193.01 360 Actual/360 No Fee
193.02 360 Actual/360 No Fee
194 0 22,753 0.02000 Actual/360 No Fee
195 360 26,830 0.02000 Actual/360 No Fee
196 360 26,293 0.02000 Actual/360 No Leasehold
197 360 26,219 0.02000 Actual/360 No Fee
198 0 21,702 0.02000 Actual/360 No Fee
199 360 26,004 0.02000 Actual/360 No Fee
200 0 22,090 0.02000 Actual/360 No Fee
201 299 28,318 0.09000 Actual/360 No Fee
202 360 25,890 0.02000 Actual/360 No Fee
203 360 26,196 0.02000 Actual/360 No Fee
204 358 25,230 0.02000 Actual/360 No Fee
205 360 24,409 0.02000 Actual/360 No Fee
206 0 19,975 0.02000 Actual/360 No Fee
206.01 0 Actual/360 No Fee
206.02 0 Actual/360 No Fee
207 360 24,457 0.02000 Actual/360 No Fee
208 298 28,280 0.02000 Actual/360 No Fee
209 359 23,919 0.02000 Actual/360 No Fee
210 360 24,035 0.02000 30/360 No Fee
211 360 23,473 0.02000 Actual/360 No Fee
212 360 23,067 0.02000 Actual/360 No Fee
213 360 24,317 0.02000 Actual/360 No Fee
214 360 23,674 0.02000 Actual/360 No Fee
215 299 25,772 0.02000 Actual/360 No Fee
216 358 23,115 0.02000 Actual/360 No Fee
217 298 25,205 0.02000 Actual/360 No Fee
218 360 24,357 0.02000 Actual/360 No Fee
219 294 25,009 0.02000 Actual/360 No Fee
220 357 22,249 0.02000 Actual/360 No Fee
221 360 21,579 0.02000 Actual/360 No Fee
222 0 17,642 0.02000 Actual/360 No Fee
223 360 20,809 0.02000 Actual/360 No Fee
224 356 20,746 0.02000 Actual/360 No Fee
225 0 16,989 0.02000 Actual/360 No Fee
226 360 19,677 0.02000 Actual/360 No Fee
227 360 19,551 0.08000 Actual/360 No Fee
228 360 18,583 0.11000 Actual/360 No Fee
229 360 17,821 0.02000 Actual/360 No Fee
230 0 14,600 0.02000 Actual/360 No Fee
231 0 14,293 0.02000 Actual/360 No Fee
232 357 18,192 0.07000 Actual/360 No Fee
233 357 17,408 0.02000 Actual/360 No Fee
234 357 17,621 0.02000 Actual/360 No Fee
235 360 16,523 0.02000 Actual/360 No Fee
236 0 12,366 0.02000 Actual/360 No Fee
237 360 15,097 0.02000 Actual/360 No Fee
238 360 14,097 0.02000 Actual/360 No Fee
239 357 13,491 0.02000 Actual/360 No Fee
240 360 13,437 0.02000 Actual/360 No Fee
241 360 12,793 0.11000 Actual/360 No Fee
242 357 6,486 0.02000 Actual/360 No Fee
#N/A #N/A #N/A #N/A #N/A #N/A #N/A
Loan # Crossed Loan Originator/Loan Seller
------ ------------ ----------------------
1 JPMCB
2 JPMCB
3 JPMCB
4 CIBC
5 JPMCB
5.01 JPMCB
5.02 JPMCB
5.03 JPMCB
5.04 JPMCB
5.05 JPMCB
5.06 JPMCB
5.07 JPMCB
5.08 JPMCB
5.09 JPMCB
5.1 JPMCB
5.11 JPMCB
5.12 JPMCB
5.13 JPMCB
5.14 JPMCB
5.15 JPMCB
6 CIBC
7 JPMCB
8 CIBC
9 JPMCB
10 JPMCB
11 CIBC
12 CIBC
12.01 CIBC
12.02 CIBC
12.03 CIBC
12.04 CIBC
12.05 CIBC
12.06 CIBC
12.07 CIBC
12.08 CIBC
13 CIBC
13.01 CIBC
13.02 CIBC
14 CIBC
15 JPMCB
16 JPMCB
16.01 JPMCB
16.02 JPMCB
16.03 JPMCB
16.04 JPMCB
16.05 JPMCB
16.06 JPMCB
16.07 JPMCB
16.08 JPMCB
16.09 JPMCB
16.1 JPMCB
16.11 JPMCB
16.12 JPMCB
16.13 JPMCB
16.14 JPMCB
16.15 JPMCB
16.16 JPMCB
16.17 JPMCB
16.18 JPMCB
16.19 JPMCB
16.2 JPMCB
17 JPMCB
18 JPMCB
19 CIBC
19.01 CIBC
19.02 CIBC
19.03 CIBC
19.04 CIBC
19.05 CIBC
19.06 CIBC
19.07 CIBC
19.08 CIBC
19.09 CIBC
20 JPMCB
21 JPMCB
22 JPMCB
23 CIBC
24 JPMCB
24.01 JPMCB
24.02 JPMCB
24.03 JPMCB
25 CIBC
26 CIBC
27 CIBC
28 CIBC
29 CIBC
30 JPMCB
31 CIBC
32 CIBC
33 CIBC
34 CIBC
35 CIBC
36 CIBC
37 JPMCB
38 JPMCB
39 JPMCB
40 JPMCB
41 CIBC
42 JPMCB
43 CIBC
44 JPMCB
44.01 JPMCB
44.02 JPMCB
45 JPMCB
46 CIBC
47 JPMCB
47.01 JPMCB
47.02 JPMCB
47.03 JPMCB
48 CIBC
49 JPMCB
50 CIBC
51 JPMCB
52 JPMCB
53 CIBC
54 CIBC
55 CIBC
56 CIBC
57 CIBC
58 CIBC
59 JPMCB
59.01 JPMCB
59.02 JPMCB
60 A JPMCB
61 JPMCB
62 JPMCB
63 JPMCB
64 JPMCB
65 CIBC
66 CIBC
67 JPMCB
68 JPMCB
69 CIBC
70 JPMCB
70.01 JPMCB
70.02 JPMCB
70.03 JPMCB
70.04 JPMCB
70.05 JPMCB
70.06 JPMCB
70.07 JPMCB
70.08 JPMCB
70.09 JPMCB
70.1 JPMCB
70.11 JPMCB
70.12 JPMCB
70.13 JPMCB
71 CIBC
72 JPMCB
73 CIBC
74 B JPMCB
76 JPMCB
77 CIBC
78 CIBC
79 CIBC
80 CIBC
81 JPMCB
82 JPMCB
83 CIBC
84 CIBC
85 CIBC
86 C JPMCB
87 CIBC
88 JPMCB
89 JPMCB
90 D JPMCB
91 CIBC
92 CIBC
93 JPMCB
94 JPMCB
94.01 JPMCB
94.02 JPMCB
95 JPMCB
96 JPMCB
97 CIBC
98 CIBC
99 JPMCB
100 CIBC
101 JPMCB
102 CIBC
103 CIBC
104 CIBC
105 CIBC
106 CIBC
107 CIBC
108 CIBC
109 JPMCB
110 CIBC
111 JPMCB
112 CIBC
113 CIBC
114 B JPMCB
115 CIBC
116 JPMCB
117 JPMCB
118 CIBC
119 JPMCB
120 JPMCB
121 CIBC
122 CIBC
123 JPMCB
124 A JPMCB
125 A JPMCB
126 C JPMCB
127 CIBC
128 D JPMCB
129 JPMCB
130 JPMCB
131 CIBC
132 CIBC
133 CIBC
134 CIBC
135 C JPMCB
136 JPMCB
137 JPMCB
138 CIBC
139 CIBC
140 JPMCB
141 CIBC
142 CIBC
143 CIBC
144 JPMCB
145 A JPMCB
146 JPMCB
147 CIBC
148 CIBC
149 D JPMCB
150 CIBC
151 CIBC
152 CIBC
153 CIBC
154 C JPMCB
155 CIBC
155.01 CIBC
155.02 CIBC
156 CIBC
157 CIBC
158 JPMCB
159 CIBC
159.01 CIBC
159.02 CIBC
159.03 CIBC
160 JPMCB
161 JPMCB
162 JPMCB
163 B JPMCB
164 JPMCB
165 CIBC
166 CIBC
167 CIBC
168 JPMCB
169 JPMCB
170 JPMCB
171 JPMCB
172 E JPMCB
173 CIBC
174 JPMCB
175 CIBC
176 JPMCB
177 JPMCB
178 CIBC
179 JPMCB
180 B JPMCB
181 CIBC
182 CIBC
183 JPMCB
184 JPMCB
185 CIBC
186 CIBC
187 JPMCB
188 JPMCB
189 CIBC
190 JPMCB
191 CIBC
192 CIBC
193 CIBC
193.01 CIBC
193.02 CIBC
194 B JPMCB
195 JPMCB
196 CIBC
197 JPMCB
198 JPMCB
199 CIBC
200 CIBC
201 JPMCB
202 JPMCB
203 CIBC
204 CIBC
205 JPMCB
206 JPMCB
206.01 JPMCB
206.02 JPMCB
207 CIBC
208 CIBC
209 JPMCB
210 JPMCB
211 JPMCB
212 JPMCB
213 CIBC
214 CIBC
215 JPMCB
216 JPMCB
217 JPMCB
218 CIBC
219 CIBC
220 JPMCB
221 CIBC
222 CIBC
223 JPMCB
224 E JPMCB
225 C JPMCB
226 JPMCB
227 JPMCB
228 CIBC
229 CIBC
230 CIBC
231 JPMCB
232 JPMCB
233 JPMCB
234 JPMCB
235 JPMCB
236 JPMCB
237 JPMCB
238 CIBC
239 JPMCB
240 CIBC
241 JPMCB
242 CIBC
#N/A #N/A
Loan # Guarantor
------ -------------------------------------------------------------------------------------------------
1 Boston Properties Limited Partnership
2 Ramco-Xxxxxxxxxx Properties L.P.
3 Sabre Inc.
4 Xxxxx Xxxxxxx
5 Cabot Industrial Value Fund II Operating Partnership, L.P.
5.01
5.02
5.03
5.04
5.05
5.06
5.07
5.08
5.09
5.1
5.11
5.12
5.13
5.14
5.15
6 Xxxxx X. Xxxxxxxx
7 Union Leasing Corp.
8 Columbia Sussex Corporation
9 The LCP Group, L.P., Crescent Hotels & Resorts, LLC
10 Xxxxxxx X'Xxxxx, Xxxxxx Xxxxxxxxxx, Xxxx Xxxxx
11 Columbia Sussex Corporation
12 Xxxxx Xxxxxxx
12.01
12.02
12.03
12.04
12.05
12.06
12.07
12.08
13 Xxxx Xxxxxxxx
13.01
13.02
14 Xxxxxxx X. Xxxxxxxxxx
15 Xxxx Operating Partnership II, LP
16 Americold Realty Trust
16.01
16.02
16.03
16.04
16.05
16.06
16.07
16.08
16.09
16.1
16.11
16.12
16.13
16.14
16.15
16.16
16.17
16.18
16.19
16.2
17 Xxxxxxxx X. Xxxxxxx
18 Xxxxx Xxxxxxx and Xxxxx Xxxxx
19 Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxx
19.01
19.02
19.03
19.04
19.05
19.06
19.07
19.08
19.09
20 Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxx
00 Xxxx Xxxxxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxxx Nocciollino
22 Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx
23 Xxxxx Xxxxxx
24 Xxxx X. Qadorh Zidan and Xxxx X. Xxxxxxxx Zidan
24.01
24.02
24.03
25 K. Xxxxxx Xxxxxxx
26 Xxxxxx Xxxxxxxx
27 Xxxxxxx Xxxx, Xxxxxx Xxxxxxx
00 Xxxxxxx X. Xxxxx
29 Xxxxxxx X. Xxxxxx
30 Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxx
31 Corporate Property Associates 16-Global Incorporated
32 Xxxxxxxxx X. Xxx
33 Xxxxx Xxxxxxxxx
34 Xxxx Xxxxxxxxxx
35 Xxxxx X. Xxxxxx, Xxxx X. Xxxxxx
00 Xxxxxx Xxxxxx, Xxxxxx Xxxxxx
37 Xxxxxx X. Xxxxx
38 Xxxxxxx Xxxxxxx
39 Titan Research & Development Louisville LLC
40 Xxxxxx X. Xxxxx
41 Xxxx Xxxxx, Xxxxxx Xxxxx Xxxxxxx
42 Xxxxxxx X. Child, Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxxx
43 Xxxx Yuval, Xxxx Xxxxx, Xxxxx Xxx Xxxxxx
00 Xxxx X. Xxxxxx Xxxxx, Xxxx X. Xxxxxxxx Zidan
44.01
44.02
45 Xxxxxxx X. Child, Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxxx
46 Xxxxx X. Xxxxxxxxx
47 Xxxxxxxx X. Xxxxxx, Xxxxxxx X. Xxx, Xxxxxx Xxxxxx
47.01
47.02
47.03
48 Sequoia Real Estate Holdings, L.P., The Xxxxx Family Trust U/A DTD 9/08/00,
Xxxxxx X. Xxxxxx, O. Xxxxx Xxxxxxxxx, Xx.
and Xxxxxx X. Xxxx Ingersoll Living Trust U/A DTD 11/5/97, Xxxx X. Xxxxxxxxx, Xxxx X. Xxxxxx
49 H. Xxxxx Xxxxxx, Xxxx X. Xxxxx, Xxxxxx X. Xxxxxxxxx, Xxxxxxxx Xxxxxxx,
Xxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxx and Xxxxx Xxxxxxx
50 Xxxx X. Xxxxxx
51 Xxxxx X. Xxxx
52 Xxxx Xxxxxxx
53 Xxxxxxx X. Xxxxxxxxxx
54 Northland Investment Corporation
55 Xxxxxx X. Xxxxxx, III
56 Xxxxxxx X. Xxxxxxxxxx
57 Xxxxx Xxxxxxx
58 Xxxxxxx X. Xxxxxxxxxx
59 Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxx, III, Xxxx X. Xxxxxx
59.01
59.02
60 Xxxxxx X. Xxxxx
61 Xxxxxx Xxxxxxxxxxx and Xxxxx Xxxxxx
62 Xxxxxxx X. Xxxxx, Xxxxxx X. Xxxxx
63 Xxxx X. Xxxxxxx
64 Xxxxxx X. Xxxxxxxxx
65 Xxxxxxx X. Xxxxxxx
66 Xxxxxxxxx X. Xxx, Xxxxx Xxx
67 Xxx Xxxxxxx
68 Xxxxxxx Xxxxx Xxxx
69 Xxxxx Western, L.P.
70 Osprey East, A Xxxxxx/Osprey Joint Venture, L.L.C.
70.01
70.02
70.03
70.04
70.05
70.06
70.07
70.08
70.09
70.1
70.11
70.12
70.13
71 Xxxx Xxxxxxx, Xxxxx Xxxxxxx, n/k/a Xxxxx Xxxx, Xxxxx Xxxxxxx, n/k/a Xxxxx Xxxxx
72 Xxxxx X. X'Xxxxxxx, Xxxxxxxx X. X'Xxxxxxx
73 Xxxxxx Xxxxx
74 Xxxxxx X. Xxxxx
76 Xxxxxxx X. Xxxx
77 Xxxxx Xxxxxxxxxx, Xxxxxxx Xxxxx
78 Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxxxxx , Xxxxxx Xxxxxxx
79 Xxxxxxx X. Xxxxxxxx, Xxxxxxx X.X. Xxxxxxxxxx
80 Xxxxx X. Xxxxxxxxxx
81 Xxxxxx X. Xxxxx
82 Xxxxxx Xxxxxx
83 Xxxxx X. Xxxxxxxxxx
84 Xxxxxxx X. Xxxxxxxxxxxx
85 Xxxxxx X. Xxxxx
86 Xxxxxx X. Xxxxx
87 Xxxxx Xxxxx
88 New Office Holdings, LP
89 Xxxxxx Xxxxxxx
90 Xxxxxx Hbma, Xxxx X. Land and Xxxxx Xxxxx
91 Xxxxxx X. Xxxxx
92 Xxxxx Xxxxxx
93 Xxxxxxx Xxxxxxxx
94 Xxxxx Xxxxx
94.01
94.02
00 Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxxxxxx, Xx., W. Xxxxxx Xxxxxxx, Xxxx X. Xxxxxx, S. Xxxxx Xxxxxx
96 Xxxxx X. Xxxxx
97 W. Xxxxx Xxxxxxxxxx
98 Xxxxx Xxxxxxxx, Xxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxxx
99 Lexington Strategic Asset Corp.
100 Xxxxxx Xxxxxxxxxxxx
101 Xxxxx X. Xxxxx
102 Prescott Capital Management, LLC
000 Xxxxxxx X. Xxxxxx
104 Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx
105 Xxxxxxxxxxx X. Xxxxx
106 Xxxxx X. Xxxxxx, Xx.
107 Xxxxx Xxxxxx, Xxxxxx Xxxxxx
108 Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxx X. Xxxxxx, Xxxxx X. Xxxxxx
109 Xxxxxxx X. Xxxxxxx and Xxxx Xxxxxxx
110 Xxxxx Xxxxxxx, R. Xxxxxxx Xxxxxxx
111 Xxxx X. Xxxxxxx
112 Xxxxxx X. Xxxxx, Xx., Xxxxxx X. Xxxxx, Xx., Xxxxxxx X. Xxxxxx, Xxxxx Real Estate Associates LLC
113 Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxxx
114 Xxxxxx X. Xxxxx
115 Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxx
116 Xxxx Xxxxxxxx, Xxxx X. Xxxxxxxx, Xxxxxx X. Xxxxx, Xxxxxxxx Xxxxx
117 Xxxx Operating Partnership II, LP
118 Xxxx Xxxxxxx
119 X. Xxxx Xxxxxxx
120 Xxxxxxxx Xxxxxx, Xxxxxxxxxxx Xxxxxx
121 Xxxxxxx X. Xxxxxxx
122 Xxxxxxx Xxxxxxx, Xxxx Xxxxxx
123 Xxxxxx X. Xxxx, Xxxxxxx X. Xxxx
124 Xxxxxx X. Xxxxx
125 Xxxxxx X. Xxxxx
126 Xxxxxx X. Xxxxx
127 Xxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxx X. Xxxxxx
128 Xxxxxx Xxxxx, Xxxx X. Land and Xxxxx Xxxxx
129 Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxxx, Xxxx Graft, Xxxxx Xxxxx
130 Xxxx X. Xxxxx
131 Xxxxxx X. Xxxxx
132 Xxxxxx Xxxx
133 Xxxxx X. Xxxxxxxx
134 Xxxxxxx X. Xxxxx
135 Xxxxxx X. Xxxxx
136 Xxxxxxx X. Xxxxxxxxx
137 Xxxxx X. Xxxxx
138 Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxx
139 Xxxxxxxx Xxxxxxxx, Xxxx Xxxxxxx
140 Xxxxxxxx Xxxxxx
141 Xxxxxxxx Xxxxxxxxx
142 Stonehenge Companies, LLC, Xxxxx X. Xxxxxxx, Xxxxxxx Xxxxxxx Development Partners, L.P.
143 Sunset Key, LLC, Xxxx Xxxxx
144 Xxxxxx Xxxxxxxxx
145 Xxxxxx X. Xxxxx
146 Xxxxxxx X. Block
147 Xxxxxx X. Xxxx, Xxxxx Xxxx, The Xxx and Xxxxx Xxxx Trust
148 Xxxx X. Xxxx, Xxxxxx X. Xxxx, Xxxxx X. Xxxxxxxx
149 Xxxxxx Xxxxx, Xxxx X. Land and Xxxxx Xxxxx
150 Xxxxxx X. Hoe
000 Xxxxxxxxx Xxxxx LLC
152 Xxxxxxx Xxxxxxxx
153 Xxxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxx Xxxxxxxx, Xxxxx X. Xxxx
154 Xxxxxx X. Xxxxx
155 Xxxx Xxxxxx, Xxxx Xxxxxxx
155.01
155.02
156 Xxxx X. Xxx, Xxxxx X. Xxx
157 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxx, Xxxxxxxx X. Xxxxxxxxxxxx
158 Xxxx Xxxxxxxxxx
159 Xxxxxx X. Xxxxxx
159.01
159.02
159.03
000 Xxxxxxxxxx X. Xx
161 Xxxx Xxxxxxxxxx
162 Xxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxx and Xxxxxxxx Xxxxx
163 Xxxxxx X. Xxxxx
164 W. Xxxxx Xxxx, Xxxx X. Xxxxxx
165 HBC LLC, Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxx
166 Xxxxxxx Xxx, Xxxx Xxxx
167 Xxxxxxxx Xxxxx
168 Xxxxxxxx X. Meter, Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx
169 Xxxxxxx Xxxxxxxx, Xxxxxxx X. Xxxxx
170 Xxxxxx X. Xxxx, Xxxxxxxx X. Xxxx, Xxxxxx X. Xxxx
171 Xxxxx X. Xxxx, W. Xxxxxx Xxxxx
172 Xxxxxx Xxxxxx
173 Xxxx Xxxxxx, Xxxx Xxxxxx and Xxxxxx Xxxxxxxx
174 Xxxxxx Xxxxxxxxx
175 Xxxxx Xxxxx, Xxxxxx Xxxxxx
176 Xxxxxxx X. Xxxxxxx
177 Xxxxxxxxx Xxxxx
178 Xxxx X. Xxxxxxxx
179 Xxxxxx X. Xxxxx
180 Xxxxxx X. Xxxxx
181 Xxxxxx Xxxx, Xxxxxx Xxxxx
182 Xxxxxx X. Xxxxxxx
183 Xxxxxxxxxxx Xxxxx Xxxxxxxxx; Xxxxxx X. Xxxxxxxxx; Xxxxxx X. Xxxxxxxxx
184 Xxxxxx Xxxxxx
185 Xxxx Xxxxx, Xxxxx Light
186 Xxx X. Xxxxxxxx, Xxxx X. Xxxxxxxx
187 Xxxxxxx X. Block
188 Xxxx Xxxxxxxxxx
189 Xxxxxxxx Xxxxx
190 Xxxx. X. Xxxxxxx and Xxxxxxx X. Xxxxx
191 Xxxx Xxxxxx, Xxxxxxxx Xxxxxx
192 Xxxxxx Xxxxxxxx
193 Xxxx X. Xxxxxx
193.01
193.02
194 Xxxxxx X. Xxxxx
195 Xxxxx Xxxxxx
196 Xxxxx X. Xxxxx
197 Xxxxxxxx Xxxxxx, Xxxxxxxxxxx Xxxxxx
198 V-Xxxxxxx, LLC
199 Xxxxxxx X. Xxxxxxxx
200 Xxxxxx X. Xxxxxxx
201 Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxx
202 Xxxx X. Xxxxxx
203 Xxxx X. Xxxxxxxx
204 Ze'ev Rav Noy, Varda Rav Noy
205 Xxxxxxx X. Xxxxxxx
206 Xxxxxxx X. Block
206.01
206.02
207 Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxxx
208 Xxxxxx X. Xxxxxx
209 Xxxxx X. Xxxxx
210 Xxxxxx X. Xxxxxxxxx
211 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx X. Xxxxxxxx and Xxxxxx Xxxxxx
212 Xxxxx Xxxxxxx
213 Xxxxxx X. Xxxxxx, Xxxxxx Xxxxxx
214 Xxxxxxx X. Xxxxxxxxxx, Xxxxxx Xxxxxxx
215 Xxxxxxx Xxxxx
216 Xxxx X. Xxxx
217 Xxxxxxx X. Xxxxxxx
218 Xxxxx Xxxxxxxx, Xxxx Xxxxx
219 X. Xxxxxxxx Woodbury, O. Xxxxxxx Xxxxxxxx, Xxxxxx X. Xxxxxx, Xx., Xxxx Xxxxxxxxxx, Xx.
220 Xxxxx X. Xxxxxxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxxx
221 Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxx, Xxxx X. Day III
222 Xxxxxx X. Xxxxxxx
223 Xxxxxx Xxxxxx
224 Xxxxxx Xxxxxx
225 Xxxxxx X. Xxxxx
226 Xxxx X. Xxxxxxx and Xxxxxx Xxxx
227 Xxxxxx X. Xxxxxxxxx III
228 Xxxx X. Xxxxxx
000 Xxxxxxxx X. Xxxxx
230 Xxxxxx X. Xxxxxxx
231 Xxxxxxx X. Block
232 Xxxxxxx X. Xxxxxx
233 Xxxxxxxxx Xxxxxxxxxx
234 Xxxxxx X. Xxxxxx, Xxxx X. Xxxxxx
235 Xxxxxxxx X. Xxxxxxx
236 Xxxxxxx X. Block
237 Xxxxxxx X. Xxxxxxxx, Xxxx Xxxxx, Xxxxx Xxxxx and Xxxxxxx Xxxx
238 Xxxx Xxxxxx, Xxxxxxx Papunen, Xxxxxxx Wanderer
239 Xxxxxxxxx Xxxxxxxxxx
240 Xxxxxxx X. Xxxxx, Xxxxxxx Xxxxxx
241 Xxxxxxx X. Xxxxxxx
242 Founders Real Estate Investment Trust
#N/A
UPFRONT ESCROW
---------------------------------------------------------------------------------------------
Loan # Letter of Credit Upfront CapEx Reserve Upfront Eng. Reserve Upfront Envir. Reserve Upfront TI/LC Reserve
------ ---------------- --------------------- -------------------- ---------------------- ---------------------
1 No 0.00 0.00 0.00 0.00
2 18,729,158 0.00 0.00 0.00 0.00
3 No 0.00 0.00 0.00 0.00
4 No 8,759.75 650,000.00 0.00 23,359.33
5 No 0.00 0.00 0.00 0.00
5.01
5.02
5.03
5.04
5.05
5.06
5.07
5.08
5.09
5.1
5.11
5.12
5.13
5.14
5.15
6 No 64,732.10 20,937.50 0.00 0.00
7 No 0.00 0.00 0.00 0.00
8 No 54,490.67 0.00 0.00 0.00
9 No 0.00 94,375.00 0.00 0.00
10 No 0.00 161,346.00 0.00 0.00
11 No 43,869.59 0.00 0.00 0.00
12 No 5,941.67 0.00 0.00 22,281.38
12.01
12.02
12.03
12.04
12.05
12.06
12.07
12.08
13 No 1,225,000.00 23,375.00 0.00 0.00
13.01
13.02
14 No 1,745.58 0.00 0.00 0.00
15 No 0.00 0.00 0.00 0.00
16 No 0.00 0.00 0.00 0.00
16.01
16.02
16.03
16.04
16.05
16.06
16.07
16.08
16.09
16.1
16.11
16.12
16.13
16.14
16.15
16.16
16.17
16.18
16.19
16.2
17 No 0.00 2,000,000.00 0.00 0.00
18 No 0.00 0.00 0.00 0.00
19 No 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
20 No 0.00 0.00 0.00 0.00
21 497,000 0.00 0.00 0.00 0.00
22 No 257,700.00 8,750.00 0.00 0.00
23 No 0.00 0.00 0.00 0.00
24 No 0.00 0.00 0.00 0.00
24.01
24.02
24.03
25 300,000 1,933.67 0.00 0.00 0.00
26 No 2,748.55 0.00 61,250.00 9,162.83
27 2,000,000 0.00 0.00 0.00 0.00
28 No 0.00 0.00 0.00 549,133.00
29 No 31,752.26 60,300.00 0.00 0.00
30 No 0.00 0.00 0.00 0.00
31 4,365,500 0.00 0.00 0.00 0.00
32 No 2,046.80 0.00 0.00 5,000.00
33 No 4,898.67 149,988.00 0.00 0.00
34 No 1,372.01 0.00 0.00 3,305.83
35 No 0.00 0.00 0.00 0.00
36 No 1,978.33 0.00 0.00 1,600,000.00
37 No 0.00 0.00 0.00 0.00
38 No 0.00 0.00 0.00 0.00
39 No 0.00 192,500.00 0.00 1,000,000.00
40 No 0.00 0.00 0.00 200,000.00
41 No 907.75 0.00 0.00 3,129,377.73
42 No 0.00 0.00 0.00 0.00
43 No 25,416.66 0.00 0.00 0.00
44 No 0.00 0.00 0.00 0.00
44.01
44.02
45 No 0.00 0.00 0.00 0.00
46 No 0.00 0.00 89,000.00 300,000.00
47 No 0.00 0.00 0.00 0.00
47.01
47.02
47.03
48 No 4,533.33 0.00 0.00 0.00
49 No 6,875.00 0.00 0.00 0.00
50 No 5,333.34 41,712.50 0.00 0.00
51 425,000 0.00 75,000.00 0.00 0.00
52 No 0.00 0.00 200,000.00 0.00
53 No 0.00 0.00 0.00 0.00
54 No 1,607.17 0.00 0.00 13,333.33
55 No 52,250.00 0.00 17,500.00 0.00
56 No 0.00 0.00 0.00 0.00
57 No 0.00 0.00 0.00 0.00
58 No 0.00 0.00 0.00 6,250.00
59 No 662,650.00 0.00 0.00 787,350.00
59.01
59.02
60 469,875 0.00 0.00 0.00 0.00
61 No 0.00 10,000.00 0.00 0.00
62 No 0.00 2,500.00 0.00 0.00
63 No 0.00 0.00 0.00 0.00
64 No 0.00 0.00 0.00 0.00
65 No 1,029.16 0.00 0.00 0.00
66 No 581.00 13,687.00 0.00 0.00
67 No 1,000,000.00 0.00 0.00 0.00
68 No 0.00 0.00 0.00 0.00
69 No 2,330.15 0.00 0.00 0.00
70 No 0.00 0.00 0.00 0.00
70.01
70.02
70.03
70.04
70.05
70.06
70.07
70.08
70.09
70.1
70.11
70.12
70.13
71 No 0.00 0.00 0.00 0.00
72 400,000 0.00 0.00 0.00 400,000.00
73 No 0.00 0.00 0.00 0.00
74 822,500 0.00 0.00 0.00 0.00
76 No 0.00 0.00 0.00 0.00
77 No 5,000.00 18,843.75 0.00 0.00
78 No 10,000.00 0.00 0.00 240,000.00
79 No 0.00 0.00 0.00 0.00
80 No 541.31 0.00 0.00 100,000.00
81 No 0.00 0.00 0.00 0.00
82 No 0.00 0.00 0.00 400,000.00
83 No 970.96 0.00 0.00 225,000.00
84 No 1,589.92 0.00 0.00 1,000.00
85 No 2,000.34 0.00 0.00 0.00
86 712,875 0.00 0.00 0.00 0.00
87 No 0.00 0.00 0.00 0.00
88 No 0.00 0.00 0.00 0.00
89 No 0.00 19,968.75 0.00 0.00
90 No 0.00 0.00 0.00 0.00
91 No 752.94 0.00 0.00 5,000.00
92 No 5,667.67 0.00 0.00 0.00
93 No 0.00 0.00 0.00 0.00
94 No 225,000.00 0.00 0.00 0.00
94.01
94.02
95 No 0.00 337,500.00 0.00 0.00
96 No 0.00 1,875.00 0.00 0.00
97 No 629.72 82,250.00 0.00 3,333.34
98 No 0.00 0.00 0.00 0.00
99 No 0.00 12,500.00 0.00 0.00
100 No 0.00 0.00 0.00 0.00
101 No 0.00 207,500.00 0.00 0.00
102 No 1,040,850.00 0.00 0.00 1,302,716.00
103 No 2,374.08 0.00 0.00 8,333.33
104 No 930.87 0.00 0.00 0.00
105 No 25,000.00 0.00 0.00 750,000.00
106 No 0.00 0.00 0.00 0.00
107 No 443.33 0.00 0.00 2,500.00
108 No 2,266.67 9,012.50 0.00 0.00
109 No 0.00 0.00 0.00 0.00
110 No 591.83 0.00 0.00 0.00
111 No 0.00 0.00 0.00 0.00
112 No 1,921.50 0.00 0.00 3,333.33
113 No 5,958.34 207,875.00 0.00 0.00
114 822,500 0.00 0.00 0.00 0.00
115 No 1,000.00 79,475.00 0.00 84,603.31
116 150,000 0.00 0.00 0.00 0.00
117 No 0.00 0.00 0.00 0.00
118 No 3,077.00 0.00 0.00 258,333.33
119 No 0.00 0.00 0.00 0.00
120 No 0.00 1,190,011.25 0.00 0.00
121 No 0.00 0.00 0.00 0.00
122 No 926.86 0.00 0.00 1,666.66
123 No 0.00 0.00 0.00 0.00
124 469,875 0.00 0.00 0.00 0.00
125 469,875 0.00 0.00 0.00 0.00
126 712,875 0.00 0.00 0.00 0.00
127 No 12,622.00 0.00 0.00 0.00
128 No 0.00 0.00 0.00 0.00
129 No 0.00 0.00 0.00 0.00
130 No 0.00 0.00 0.00 0.00
131 No 591.79 0.00 0.00 2,083.33
132 No 4,081.01 13,937.50 0.00 4,222.83
133 No 4,416.67 0.00 0.00 0.00
134 No 533.08 0.00 0.00 1,500.00
135 712,875 0.00 0.00 0.00 0.00
136 No 0.00 0.00 0.00 0.00
137 No 0.00 5,250.00 0.00 0.00
138 No 6,850.00 0.00 12,500.00 0.00
139 No 2,500.00 0.00 0.00 0.00
140 No 0.00 0.00 0.00 0.00
141 254,314 742.73 0.00 0.00 2,475.00
142 No 1,160.00 0.00 0.00 67,500.00
143 No 0.00 0.00 0.00 0.00
144 No 0.00 0.00 0.00 0.00
145 469,875 0.00 0.00 0.00 0.00
146 No 0.00 0.00 0.00 0.00
147 No 791.34 0.00 0.00 989.17
148 No 0.00 0.00 0.00 0.00
149 No 0.00 0.00 0.00 0.00
150 No 1,182.67 32,113.00 0.00 6,618.86
151 No 1,208.33 0.00 62,500.00 0.00
152 No 258.00 0.00 0.00 20,000.00
153 No 838.75 0.00 343,750.00 150,000.00
154 712,875 0.00 0.00 0.00 0.00
155 No 29,929.04 800.00 0.00 4,099.00
155.01
155.02
156 No 614.32 0.00 0.00 1,440,000.00
157 No 5,804.22 0.00 0.00 0.00
158 No 0.00 0.00 0.00 0.00
159 No 790.06 0.00 0.00 250,000.00
159.01
159.02
159.03
160 No 0.00 0.00 0.00 0.00
161 No 0.00 0.00 0.00 0.00
162 800,000 0.00 0.00 0.00 0.00
163 822,500 0.00 0.00 0.00 0.00
164 No 0.00 16,250.00 0.00 0.00
165 No 0.00 0.00 0.00 0.00
166 No 348.23 0.00 0.00 1,741.13
167 No 711.75 0.00 0.00 592,804.00
168 No 0.00 0.00 0.00 0.00
169 No 0.00 0.00 0.00 150,000.00
170 No 0.00 0.00 0.00 0.00
171 No 0.00 0.00 0.00 0.00
172 No 0.00 0.00 0.00 0.00
173 No 0.00 0.00 16,500.00 0.00
174 No 0.00 0.00 0.00 0.00
175 No 1,140.00 0.00 0.00 402,137.50
176 No 0.00 0.00 0.00 0.00
177 No 0.00 11,391.25 0.00 0.00
178 No 538.00 0.00 0.00 1,667.00
179 No 0.00 0.00 0.00 0.00
180 822,500 0.00 0.00 0.00 0.00
181 No 0.00 0.00 0.00 0.00
182 No 0.00 0.00 0.00 0.00
183 No 0.00 0.00 0.00 0.00
184 No 0.00 0.00 0.00 0.00
185 No 369.59 0.00 0.00 1,666.67
186 No 0.00 0.00 0.00 0.00
187 No 0.00 0.00 0.00 0.00
188 No 0.00 10,187.50 0.00 100,000.00
189 No 525.00 5,125.00 2,250.00 1,000,000.00
190 No 0.00 0.00 0.00 0.00
191 No 307.67 0.00 0.00 81,000.00
192 No 11,293.56 0.00 0.00 628.12
193 No 483.00 0.00 0.00 1,000.00
193.01
193.02
194 822,500 0.00 0.00 0.00 0.00
195 No 0.00 85,275.00 0.00 0.00
196 No 614.50 0.00 0.00 0.00
197 No 211,503.00 176,487.00 0.00 0.00
198 No 0.00 125,000.00 0.00 0.00
199 No 0.00 0.00 0.00 0.00
200 No 0.00 0.00 0.00 0.00
201 No 0.00 0.00 0.00 0.00
202 No 0.00 42,566.25 0.00 0.00
203 No 430.02 0.00 0.00 2,778.00
204 No 809.03 0.00 0.00 0.00
205 No 0.00 0.00 0.00 0.00
206 No 0.00 0.00 6,000.00 0.00
206.01
206.02
207 No 3,333.33 109,375.00 0.00 0.00
208 No 0.00 0.00 0.00 0.00
209 No 0.00 0.00 0.00 0.00
210 No 0.00 0.00 0.00 0.00
211 No 0.00 0.00 0.00 0.00
212 No 0.00 0.00 0.00 0.00
213 No 843.25 150,000.00 0.00 4,166.67
214 No 532.83 0.00 0.00 2,083.33
215 No 0.00 32,220.00 0.00 0.00
216 No 0.00 0.00 0.00 0.00
217 150,000 0.00 0.00 0.00 0.00
218 No 1,375.00 0.00 0.00 0.00
219 No 0.00 0.00 0.00 0.00
220 No 0.00 3,750.00 0.00 39,800.00
221 No 75,183.33 25,500.00 0.00 0.00
222 No 0.00 0.00 0.00 0.00
223 No 0.00 0.00 0.00 0.00
224 No 0.00 0.00 0.00 0.00
225 712,875 0.00 0.00 0.00 0.00
226 No 50,000.00 23,375.00 0.00 0.00
227 No 0.00 115,000.00 0.00 0.00
228 No 228.13 0.00 0.00 1,250.00
229 No 645.75 0.00 0.00 0.00
230 No 0.00 0.00 0.00 0.00
231 No 0.00 0.00 0.00 0.00
232 No 0.00 0.00 0.00 0.00
233 80,000 0.00 0.00 0.00 0.00
234 No 0.00 0.00 0.00 0.00
235 No 0.00 1,125.00 0.00 0.00
236 No 0.00 0.00 0.00 0.00
237 No 5,375.00 0.00 0.00 0.00
238 No 1,000.00 48,625.00 0.00 0.00
239 125,000 0.00 0.00 0.00 0.00
240 No 34,185.93 3,937.00 0.00 743.75
241 No 0.00 0.00 0.00 0.00
242 No 169.58 0.00 0.00 0.00
#N/A #N/A #N/A #N/A #N/A
UPFRONT ESCROW MONTHLY ESCROW
----------------------------------------------------------------------- ---------------------
Loan # Upfront RE Tax Reserve Upfront Ins. Reserve Upfront Other Reserve Monthly Capex Reserve
------ ---------------------- ---------------------- --------------------- ---------------------
1 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00
3 0.00 0.00 0.00 0.00
4 855,944.91 27,562.50 0.00 8759.76
5 0.00 0.00 0.00 0.00
5.01
5.02
5.03
5.04
5.05
5.06
5.07
5.08
5.09
5.1
5.11
5.12
5.13
5.14
5.15
6 496,762.50 181,883.33 2,620,000.00 64732.10
7 55,752.79 38,426.33 0.00 61170.00
8 142,000.00 94,628.50 0.00 54490.67
9 375,365.25 147,309.25 3,316,000.00 45479.08
10 7,989.50 55,210.00 4,560,435.00 4427.25
11 184,715.83 49,174.50 0.00 43869.59
12 331,814.02 18,621.25 2,320,655.00 5941.67
12.01
12.02
12.03
12.04
12.05
12.06
12.07
12.08
13 303,844.54 74,959.40 0.00 0.00
13.01
13.02
14 71,425.67 55,686.92 0.00 1745.58
15 347,233.33 44,947.65 0.00 1474.54
16 0.00 0.00 0.00 0.00
16.01
16.02
16.03
16.04
16.05
16.06
16.07
16.08
16.09
16.1
16.11
16.12
16.13
16.14
16.15
16.16
16.17
16.18
16.19
16.2
17 0.00 0.00 0.00 0.00
18 0.00 0.00 0.00 0.00
19 164,152.06 122,151.26 0.00 2500.00
19.01
19.02
19.03
19.04
19.05
19.06
19.07
19.08
19.09
20 130,246.96 10,900.00 0.00 0.00
21 0.00 0.00 305,000.00 0.00
22 74,033.09 207,700.86 0.00 2379.56
23 0.00 0.00 0.00 0.00
24 207,209.63 96,326.25 0.00 10502.18
24.01
24.02
24.03
25 179,314.58 5,575.00 0.00 1933.67
26 62,296.67 76,255.75 0.00 2748.85
27 94,916.00 5,381.00 0.00 25509.00
28 0.00 0.00 0.00 0.00
29 62,473.94 19,108.75 3,200,000.00 31752.26
30 16,897.72 0.00 0.00 795.83
31 0.00 0.00 0.00 0.00
32 92,711.12 41,154.75 0.00 2046.80
33 127,969.33 25,553.36 387,728.25 4898.67
34 72,982.12 39,979.00 2,060,000.00 1372.01
35 115,565.75 22,947.17 0.00 0.00
36 0.00 0.00 0.00 1978.33
37 13,351.97 0.00 0.00 541.67
38 87,005.30 0.00 0.00 11038.67
39 0.00 167,467.50 46,000.00 13645.41
40 116,207.79 59,960.16 0.00 0.00
41 47,014.33 5,322.50 5,213,480.08 907.75
42 0.00 0.00 0.00 0.00
43 68,605.00 23,497.50 0.00 25416.66
44 94,081.72 61,375.50 0.00 7861.42
44.01
44.02
45 0.00 0.00 0.00 0.00
46 276,823.60 7,853.75 1,700,000.00 1878.00
47 63,802.63 14,928.50 0.00 0.00
47.01
47.02
47.03
48 183,126.33 12,131.00 0.00 4533.33
49 0.00 18,030.00 0.00 2096.58
50 31,417.23 10,821.25 0.00 5333.34
51 27,152.08 4,602.66 0.00 1127.22
52 0.00 0.00 275,000.00 620.68
53 119,220.00 9,801.75 33,750.00 0.00
54 109,087.72 13,016.00 0.00 1607.17
55 64,015.58 10,107.25 2,447,750.00 0.00
56 77,291.67 12,127.33 0.00 0.00
57 0.00 0.00 0.00 0.00
58 83,351.25 38,764.83 1,000,000.00 1889.15
59 69,137.39 11,489.33 0.00 0.00
59.01
59.02
60 0.00 0.00 0.00 1516.67
61 96,460.11 55,869.93 0.00 8606.31
62 10,794.00 17,906.00 0.00 0.00
63 0.00 0.00 0.00 0.00
64 10,180.27 5,439.17 0.00 2458.33
65 36,562.23 31,358.25 0.00 1029.16
66 188,264.66 14,881.83 32,300.00 581.00
67 87,952.28 6,716.67 0.00 1706.78
68 94,943.09 8,214.00 0.00 1254.24
69 68,905.52 33,513.33 55,000.00 2330.15
70 94,846.92 0.00 0.00 4973.37
70.01
70.02
70.03
70.04
70.05
70.06
70.07
70.08
70.09
70.1
70.11
70.12
70.13
71 31,960.11 3,563.10 0.00 0.00
72 19,411.57 0.00 30,000.00 807.59
73 0.00 35,000.00 0.00 0.00
74 0.00 0.00 0.00 1287.50
76 61,009.17 3,233.67 0.00 0.00
77 137,505.08 62,310.43 1,000,000.00 5000.00
78 52,759.44 4,947.97 0.00 367.50
79 0.00 0.00 0.00 0.00
80 158,621.59 24,240.50 0.00 541.31
81 3,011.00 1,621.71 0.00 588.46
82 115,088.08 72,635.00 0.00 1403.67
83 143,547.00 55,314.75 971,625.00 970.96
84 29,784.78 6,113.33 0.00 1589.92
85 0.00 0.00 0.00 2000.34
86 0.00 0.00 0.00 937.50
87 163,233.47 7,952.00 0.00 1349.71
88 0.00 0.00 0.00 0.00
89 0.00 0.00 0.00 0.00
90 115,893.74 7,484.75 0.00 3077.46
91 17,462.82 5,690.50 0.00 752.94
92 145,014.50 5,685.02 1,500,000.00 5667.67
93 41,170.00 32,092.67 0.00 3791.67
94 27,644.75 15,793.50 0.00 0.00
94.01
94.02
95 98,291.88 30,265.17 238,000.00 0.00
96 7,116.00 6,683.25 0.00 4777.97
97 15,477.17 19,906.67 0.00 629.72
98 71,451.09 5,049.75 0.00 1217.00
99 0.00 0.00 0.00 0.00
100 0.00 0.00 0.00 0.00
101 90,980.96 19,945.83 0.00 0.00
102 28,583.33 21,580.75 100,000.00 3060.00
103 59,462.03 26,672.33 0.00 2374.08
104 0.00 0.00 0.00 930.87
105 64,305.76 13,263.33 31,739.41 2463.33
106 6,941.86 6,916.33 400,000.00 1655.08
107 28,586.11 5,643.83 0.00 443.33
108 57,773.02 25,223.33 0.00 2266.67
109 64,282.50 0.00 0.00 0.00
110 35,333.33 6,444.33 2,000,000.00 591.83
111 28,905.24 48,511.00 0.00 16297.73
112 0.00 0.00 0.00 1921.50
113 80,273.60 92,211.14 0.00 5958.34
114 0.00 0.00 0.00 1465.33
115 0.00 6,189.50 86,367.00 1000.00
116 20,481.41 2,159.00 0.00 0.00
117 0.00 0.00 0.00 0.00
118 65,082.50 51,358.67 316,137.00 3077.00
119 15,290.64 13,530.00 0.00 1047.16
120 6,738.38 15,221.67 106,666.70 0.00
121 70,264.75 12,316.50 30,000.00 0.00
122 69,721.57 19,153.33 1,795,000.00 926.66
123 16,666.67 652.33 52,809.33 118.06
124 0.00 0.00 0.00 920.17
125 0.00 0.00 0.00 1572.92
126 0.00 0.00 0.00 804.17
127 24,098.12 9,734.50 0.00 12622.00
128 76,615.93 5,151.75 0.00 1653.48
129 47,898.50 20,000.00 0.00 8779.87
130 81,512.49 1,548.17 256,000.00 227.78
131 117,775.00 19,691.25 0.00 591.79
132 39,507.26 6,157.00 300,000.00 4081.01
133 87,000.00 18,600.33 100,000.00 4416.67
134 27,326.85 5,245.49 0.00 533.08
135 0.00 0.00 0.00 900.00
136 42,433.50 5,367.75 0.00 0.00
137 75,150.96 139,491.55 0.00 0.00
138 33,639.44 80,566.65 0.00 6850.00
139 11,883.95 20,078.34 0.00 2500.00
140 11,355.08 20,158.67 0.00 581.00
141 64,040.83 7,200.29 0.00 742.73
142 18,102.75 4,882.00 60,000.00 1160.00
143 0.00 0.00 0.00 0.00
144 48,253.54 15,999.33 0.00 4285.75
145 0.00 0.00 0.00 948.17
146 30,695.26 1,887.00 0.00 0.00
147 17,438.46 18,053.75 0.00 791.34
148 0.00 0.00 0.00 0.00
149 58,217.33 3,857.75 0.00 2981.68
150 34,839.53 9,702.75 0.00 1182.67
151 43,341.32 9,733.50 0.00 1208.33
152 20,843.04 8,562.06 344,413.67 258.00
153 28,632.08 7,843.00 0.00 838.75
154 0.00 0.00 0.00 595.83
155 20,264.08 38,237.50 0.00 929.04
155.01
155.02
156 36,855.83 2,731.50 500,000.00 307.16
157 32,737.75 22,600.64 0.00 5804.22
158 41,450.00 2,008.00 0.00 0.00
159 58,436.84 9,050.67 0.00 790.06
159.01
159.02
159.03
160 33,248.33 6,115.00 554,762.00 239.17
161 38,916.67 1,930.25 0.00 0.00
162 30,800.00 7,552.10 45,600.00 1554.26
163 0.00 0.00 0.00 550.00
164 19,216.81 37,034.17 22,000.00 5933.33
165 0.00 0.00 0.00 783.00
166 22,211.52 1,200.33 0.00 348.23
167 81,742.50 40,113.00 0.00 711.75
168 112,540.64 3,922.33 46,282.00 642.13
169 145,399.58 3,935.25 0.00 2579.42
170 0.00 0.00 0.00 0.00
171 34,557.09 24,684.75 0.00 0.00
172 0.00 0.00 0.00 0.00
173 8,498.48 11,761.75 0.00 550.82
174 6,307.78 11,636.67 0.00 3275.68
175 10,054.56 5,625.00 0.00 1140.00
176 4,359.98 0.00 0.00 247.51
177 0.00 0.00 0.00 0.00
178 0.00 0.00 0.00 538.00
179 0.00 0.00 0.00 1008.33
180 0.00 0.00 0.00 762.50
181 4,360.00 21,318.50 410,000.00 284.66
182 0.00 0.00 0.00 0.00
183 42,329.99 0.00 122,800.00 3111.81
184 0.00 0.00 0.00 0.00
185 17,091.67 3,252.50 0.00 369.59
186 0.00 0.00 0.00 0.00
187 40,573.44 758.33 0.00 0.00
188 34,253.75 11,543.00 0.00 1121.79
189 35,000.00 1,703.00 0.00 525.00
190 25,077.94 435.25 0.00 0.00
191 24,259.84 1,463.75 79,738.72 307.67
192 21,567.92 2,331.75 0.00 213.56
193 60,956.75 8,167.08 75,000.00 483.00
193.01
193.02
194 0.00 0.00 0.00 783.33
195 63,203.56 27,574.38 30,000.00 5878.04
196 61,273.28 4,521.50 0.00 614.50
197 18,134.50 5,909.17 0.00 6557.50
198 17,800.00 0.00 0.00 0.00
199 37,142.13 11,190.75 0.00 0.00
200 0.00 0.00 0.00 0.00
201 19,992.55 16,233.00 0.00 5600.00
202 0.00 0.00 0.00 3500.00
203 0.00 0.00 0.00 430.02
204 11,457.12 0.00 0.00 0.00
205 17,241.86 13,178.97 0.00 1875.00
206 25,443.71 1,138.83 0.00 0.00
206.01
206.02
207 45,216.81 51,007.97 0.00 3333.33
208 0.00 3,397.75 0.00 675.00
209 0.00 9,908.36 0.00 0.00
210 6,222.44 3,968.50 0.00 1479.17
211 46,057.00 2,156.75 0.00 0.00
212 0.00 0.00 0.00 0.00
213 33,410.80 45,207.50 0.00 843.25
214 31,794.08 1,398.33 0.00 532.83
215 3,903.85 0.00 0.00 0.00
216 20,534.23 0.00 0.00 0.00
217 28,500.32 6,172.83 0.00 1236.51
218 4,012.00 8,530.11 0.00 1375.00
219 9,853.38 7,044.92 0.00 0.00
220 20,297.50 2,757.33 0.00 278.63
221 10,000.00 3,769.50 0.00 683.33
222 0.00 0.00 0.00 0.00
223 21,126.17 4,930.04 0.00 1524.00
224 0.00 0.00 0.00 0.00
225 0.00 0.00 0.00 562.50
226 15,808.52 13,766.67 0.00 783.00
227 1,500.00 696.92 0.00 716.00
228 32,053.55 3,100.00 126,774.00 228.13
229 0.00 3,215.33 0.00 645.75
230 0.00 0.00 0.00 0.00
231 8,993.47 701.25 0.00 0.00
232 8,043.65 8,375.00 17,500.00 3518.25
233 10,533.40 2,129.00 0.00 439.00
234 8,374.17 9,636.67 0.00 1066.67
235 0.00 0.00 0.00 195.83
236 12,987.52 498.83 0.00 0.00
237 2,768.00 347.00 0.00 75.08
238 18,427.29 21,698.57 0.00 0.00
239 30,813.55 4,219.67 0.00 1434.00
240 7,322.32 6,933.33 0.00 185.93
241 2,104.96 3,291.75 0.00 0.00
242 0.00 0.00 0.00 169.58
#N/A #N/A #N/A #N/A
MONTHLY ESCROW
----------------------------------------------------------------------------------------------
Loan # Monthly Envir. Reserve Monthly TI/LC Reserve Monthly RE Tax Reserve Monthly Ins. Reserve
------ ---------------------- --------------------- ---------------------- --------------------
1 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00
3 0.00 0.00 0.00 0.00
4 0.00 23359.33 110432.08 9187.50
5 0.00 0.00 0.00 0.00
5.01
5.02
5.03
5.04
5.05
5.06
5.07
5.08
5.09
5.1
5.11
5.12
5.13
5.14
5.15
6 0.00 0.00 99352.50 18188.33
7 0.00 0.00 55752.79 9606.58
8 0.00 0.00 35500.00 0.00
9 0.00 0.00 41707.25 12809.50
10 0.00 0.00 2663.17 5521.00
11 0.00 0.00 36943.17 0.00
12 0.00 22281.38 40474.15 56207.08
12.01
12.02
12.03
12.04
12.05
12.06
12.07
12.08
13 0.00 0.00 50640.76 24986.47
13.01
13.02
14 0.00 0.00 17856.42 11227.75
15 0.00 11660.00 31566.67 4086.15
16 0.00 0.00 0.00 0.00
16.01
16.02
16.03
16.04
16.05
16.06
16.07
16.08
16.09
16.1
16.11
16.12
16.13
16.14
16.15
16.16
16.17
16.18
16.19
16.2
17 0.00 0.00 0.00 0.00
18 0.00 0.00 0.00 0.00
19 0.00 0.00 29098.65 9575.07
19.01
19.02
19.03
19.04
19.05
19.06
19.07
19.08
19.09
20 0.00 0.00 26049.39 1816.67
21 0.00 0.00 0.00 0.00
22 0.00 6833.33 37016.55 34616.81
23 0.00 0.00 0.00 0.00
24 0.00 0.00 41441.93 10702.92
24.01
24.02
24.03
25 0.00 0.00 35862.92 1858.33
26 0.00 9162.83 31148.33 12020.41
27 0.00 0.00 23729.00 2690.50
28 0.00 0.00 0.00 0.00
29 0.00 0.00 31236.97 6369.58
30 0.00 0.00 8448.86 0.00
31 0.00 0.00 0.00 0.00
32 0.00 5000.00 15451.85 3165.75
33 0.00 0.00 31992.33 8517.79
34 0.00 3305.83 19037.49 3331.58
35 0.00 0.00 38521.92 1639.08
36 0.00 0.00 0.00 0.00
37 0.00 0.00 6675.98 0.00
38 0.00 0.00 15819.15 0.00
39 0.00 11000.00 0.00 16746.75
40 0.00 6000.00 23241.56 4996.68
41 0.00 0.00 11753.58 1774.17
42 0.00 0.00 0.00 0.00
43 0.00 0.00 17151.25 7832.50
44 0.00 0.00 18816.34 6819.50
44.01
44.02
45 0.00 0.00 0.00 0.00
46 0.00 0.00 26190.12 2617.92
47 0.00 0.00 10633.77 4976.17
47.01
47.02
47.03
48 0.00 0.00 45781.58 4043.67
49 0.00 7500.00 11169.23 3005.00
50 0.00 0.00 10472.41 3607.08
51 0.00 0.00 0.00 0.00
52 0.00 2083.33 0.00 0.00
53 0.00 0.00 23844.00 3267.25
54 0.00 13333.33 27271.93 1084.67
55 0.00 0.00 9145.08 3369.08
56 0.00 0.00 11041.67 6063.67
57 0.00 0.00 0.00 0.00
58 0.00 6250.00 27783.75 2768.92
59 0.00 0.00 11522.90 5744.92
59.01
59.02
60 0.00 0.00 0.00 0.00
61 0.00 0.00 13780.02 18623.31
62 0.00 0.00 5397.00 2558.00
63 0.00 0.00 0.00 0.00
64 0.00 0.00 10180.27 2719.58
65 0.00 0.00 12187.41 2850.75
66 0.00 0.00 31377.44 3063.83
67 0.00 5689.33 29317.43 3358.33
68 0.00 4167.00 15823.85 684.50
69 0.00 0.00 13781.10 8378.33
70 0.00 0.00 18969.38 0.00
70.01
70.02
70.03
70.04
70.05
70.06
70.07
70.08
70.09
70.1
70.11
70.12
70.13
71 0.00 0.00 6392.02 1031.55
72 0.00 3350.00 19411.57 0.00
73 0.00 0.00 0.00 0.00
74 0.00 0.00 0.00 0.00
76 0.00 2395.83 30504.58 1616.83
77 0.00 0.00 15278.34 11788.56
78 0.00 2041.67 8793.24 1649.32
79 0.00 0.00 0.00 0.00
80 0.00 0.00 19827.70 8080.17
81 0.00 0.00 3011.00 810.65
82 0.00 0.00 11508.81 6052.92
83 0.00 0.00 23924.50 18438.25
84 0.00 1000.00 9928.26 3056.67
85 0.00 0.00 0.00 0.00
86 0.00 0.00 0.00 0.00
87 0.00 8998.00 17519.64 1988.00
88 0.00 0.00 0.00 0.00
89 0.00 3300.00 0.00 0.00
90 0.00 0.00 23178.75 2494.92
91 0.00 5000.00 5820.94 2845.25
92 0.00 0.00 24169.08 5685.02
93 0.00 0.00 10292.50 4011.58
94 0.00 0.00 3949.25 1754.83
94.01
94.02
95 0.00 3500.00 10921.33 7566.29
96 0.00 0.00 7116.00 2227.75
97 0.00 3333.34 7738.58 3391.33
98 0.00 6087.42 10207.30 1683.25
99 0.00 0.00 0.00 0.00
100 0.00 5000.00 0.00 0.00
101 0.00 4166.67 9098.10 1994.58
102 0.00 10198.00 5716.67 4410.25
103 0.00 8333.33 11892.41 1905.17
104 0.00 0.00 0.00 0.00
105 0.00 6158.33 16076.44 2652.67
106 0.00 2500.00 3832.01 3263.83
107 0.00 2500.00 7146.53 1770.16
108 0.00 0.00 14443.26 3603.33
109 0.00 0.00 6428.25 0.00
110 0.00 0.00 8833.33 1611.08
111 0.00 0.00 9635.08 4042.58
112 0.00 3333.33 0.00 0.00
113 0.00 0.00 16054.72 10583.04
114 0.00 0.00 0.00 0.00
115 0.00 0.00 7591.17 2063.17
116 0.00 3750.00 10240.71 1079.50
117 0.00 0.00 0.00 0.00
118 0.00 8333.33 10847.08 3950.67
119 0.00 8726.35 7645.32 1691.25
120 0.00 0.00 3369.19 3805.42
121 0.00 0.00 6628.75 879.75
122 0.00 1666.66 6665.26 2394.17
123 0.00 4000.00 3333.33 652.33
124 0.00 0.00 0.00 0.00
125 0.00 0.00 0.00 0.00
126 0.00 0.00 0.00 0.00
127 0.00 0.00 8032.71 3244.83
128 0.00 0.00 15323.19 1717.25
129 0.00 0.00 7983.08 2500.00
130 0.00 6315.00 13585.41 1548.17
131 0.00 2083.33 16825.00 1312.75
132 0.00 4222.83 7901.45 2052.33
133 0.00 0.00 14500.00 5566.67
134 0.00 1500.00 3543.80 874.25
135 0.00 0.00 0.00 0.00
136 0.00 0.00 1789.25 0.00
137 0.00 0.00 9393.87 12681.05
138 0.00 0.00 11213.15 6713.89
139 0.00 0.00 11883.95 5019.58
140 0.00 1667.00 11355.08 2519.83
141 0.00 2475.00 12808.17 1800.07
142 0.00 2500.00 6034.25 1627.33
143 0.00 0.00 0.00 0.00
144 0.00 0.00 6893.36 1999.92
145 0.00 0.00 0.00 0.00
146 0.00 0.00 10452.81 629.00
147 0.00 989.17 5812.82 1641.25
148 0.00 0.00 0.00 0.00
149 0.00 0.00 11643.47 1285.92
150 0.00 551.57 8709.88 3234.25
151 0.00 0.00 4334.13 1390.50
152 0.00 1667.00 2977.58 1070.26
153 0.00 5200.00 5726.42 3031.56
154 0.00 0.00 0.00 0.00
155 0.00 4099.00 2894.87 3823.75
155.01
155.02
156 0.00 0.00 7371.17 910.50
157 0.00 0.00 6547.55 2511.18
158 0.00 0.00 6908.33 669.33
159 0.00 0.00 9739.47 1131.33
159.01
159.02
159.03
160 0.00 1877.00 5227.50 1223.00
161 0.00 0.00 7783.33 643.42
162 0.00 0.00 4400.00 1078.87
163 0.00 0.00 0.00 0.00
164 0.00 0.00 3202.80 3703.42
165 0.00 2175.00 0.00 0.00
166 0.00 1741.13 7403.84 300.08
167 0.00 0.00 16348.50 7467.83
168 0.00 4461.25 15005.42 980.58
169 0.00 0.00 11184.58 3935.25
170 0.00 0.00 14213.33 0.00
171 0.00 0.00 3839.68 2146.50
172 0.00 9963.33 0.00 0.00
173 0.00 1833.34 4249.24 904.75
174 0.00 0.00 6307.78 1454.58
175 0.00 2137.50 3351.52 1875.00
176 0.00 0.00 4359.98 0.00
177 0.00 0.00 0.00 0.00
178 0.00 1667.00 0.00 0.00
179 0.00 0.00 0.00 0.00
180 0.00 0.00 0.00 0.00
181 0.00 1897.75 1453.33 3045.50
182 0.00 0.00 0.00 0.00
183 0.00 0.00 8466.00 1502.67
184 0.00 0.00 0.00 0.00
185 0.00 1666.67 2441.67 1084.17
186 0.00 0.00 0.00 0.00
187 0.00 0.00 5796.21 379.17
188 0.00 2083.33 4893.39 2885.75
189 0.00 0.00 2916.67 567.67
190 0.00 0.00 5015.59 145.08
191 0.00 0.00 4043.31 487.92
192 0.00 628.12 4313.58 671.75
193 0.00 1000.00 4861.67 810.25
193.01
193.02
194 0.00 0.00 0.00 0.00
195 0.00 0.00 10533.93 3676.58
196 0.00 0.00 8906.00 753.58
197 0.00 0.00 4553.63 2954.58
198 0.00 0.00 0.00 0.00
199 0.00 0.00 7428.43 1243.42
200 0.00 0.00 0.00 0.00
201 0.00 0.00 2856.08 1803.67
202 0.00 0.00 0.00 0.00
203 0.00 2778.00 0.00 0.00
204 0.00 0.00 0.00 0.00
205 0.00 0.00 5747.29 1882.71
206 0.00 0.00 6227.07 569.41
206.01
206.02
207 0.00 0.00 9043.36 5861.42
208 0.00 0.00 0.00 1132.58
209 0.00 0.00 0.00 3302.79
210 0.00 0.00 6222.43 1984.25
211 0.00 0.00 4187.02 718.92
212 0.00 0.00 0.00 0.00
213 0.00 4166.67 6682.16 3477.50
214 0.00 2083.33 3974.26 139.83
215 0.00 0.00 3903.85 0.00
216 0.00 0.00 2281.59 0.00
217 0.00 0.00 5700.06 440.92
218 0.00 0.00 1003.00 2843.37
219 0.00 0.00 3284.46 1006.42
220 0.00 0.00 6765.83 344.66
221 0.00 0.00 833.33 384.00
222 0.00 0.00 0.00 0.00
223 0.00 0.00 10563.08 1643.35
224 0.00 7583.00 0.00 0.00
225 0.00 0.00 0.00 0.00
226 0.00 0.00 5269.51 2753.33
227 0.00 1334.00 1500.00 696.92
228 0.00 1250.00 4006.69 387.50
229 0.00 0.00 4153.03 564.92
230 0.00 0.00 0.00 0.00
231 0.00 0.00 3092.57 233.75
232 0.00 0.00 2010.91 1395.83
233 0.00 0.00 3009.54 532.25
234 0.00 0.00 1674.83 1376.67
235 0.00 0.00 0.00 0.00
236 0.00 0.00 1855.36 249.42
237 0.00 0.00 1384.00 347.00
238 0.00 0.00 2632.47 1662.19
239 0.00 0.00 8803.87 1054.92
240 0.00 743.75 1464.46 533.33
241 0.00 834.00 420.99 365.75
242 0.00 0.00 0.00 0.00
#N/A #N/A #N/A #N/A
MONTHLY ESCROW
---------------------
Loan # Monthly Other Reserve Grace Period Lockbox In-place Property Type Defeasance Permitted
------ --------------------- ------------ ---------------- -------------------- --------------------
1 0.00 0 Yes Office Yes
2 0.00 5 Yes Retail Yes
3 0.00 7 Yes Office Yes
4 0.00 7 Yes Office Yes
5 0.00 0 No Industrial Yes
5.01 0 Industrial
5.02 0 Industrial
5.03 0 Industrial
5.04 0 Industrial
5.05 0 Industrial
5.06 0 Industrial
5.07 0 Industrial
5.08 0 Industrial
5.09 0 Industrial
5.1 0 Industrial
5.11 0 Industrial
5.12 0 Industrial
5.13 0 Industrial
5.14 0 Industrial
5.15 0 Industrial
6 0.00 7 Yes Hotel Yes
7 0.00 5 Yes Hotel Yes
8 0.00 7 No Hotel Yes
9 0.00 5 Yes Hotel Yes
10 0.00 7 Yes Office Yes
11 0.00 7 No Hotel Yes
12 0.00 7 Yes Office Yes
12.01 0.00 7 Office
12.02 0.00 7 Office
12.03 0.00 7 Office
12.04 0.00 7 Office
12.05 0.00 7 Office
12.06 0.00 7 Office
12.07 0.00 7 Office
12.08 0.00 7 Office
13 0.00 7 No Multifamily Yes
13.01 0.00 7 Multifamily
13.02 0.00 7 Multifamily
14 0.00 7 No Retail Yes
15 0.00 8 No Retail Yes
16 0.00 5 Yes Industrial Yes
16.01 5 Industrial
16.02 5 Industrial
16.03 5 Industrial
16.04 5 Industrial
16.05 5 Industrial
16.06 5 Industrial
16.07 5 Industrial
16.08 5 Industrial
16.09 5 Industrial
16.1 5 Industrial
16.11 5 Industrial
16.12 5 Industrial
16.13 5 Industrial
16.14 5 Industrial
16.15 5 Industrial
16.16 5 Industrial
16.17 5 Industrial
16.18 5 Industrial
16.19 5 Industrial
16.2 5 Industrial
17 0.00 5 No Retail Yes
18 0.00 5 No Multifamily Yes
19 0.00 7 No Various Yes
19.01 0.00 7 Retail
19.02 0.00 7 Retail
19.03 0.00 7 Retail
19.04 0.00 7 Office
19.05 0.00 7 Office
19.06 0.00 7 Retail
19.07 0.00 7 Retail
19.08 0.00 7 Office
19.09 0.00 7 Office
20 0.00 5 No Retail Yes
21 0.00 10 No Retail Yes
22 0.00 5 No Retail Yes
23 0.00 7 No Industrial Yes
24 0.00 5 No Multifamily Yes
24.01 5 Multifamily
24.02 5 Multifamily
24.03 5 Multifamily
25 0.00 7 No Retail Yes
26 0.00 7 No Retail Yes
27 0.00 7 No Hotel Yes
28 0.00 7 No Industrial Yes
29 0.00 7 No Hotel Yes
30 0.00 5 No Manufactured Housing Yes
31 0.00 7 No Industrial Yes
32 0.00 7 No Retail Yes
33 0.00 7 No Multifamily Yes
34 0.00 7 No Retail Yes
35 0.00 7 No Office Yes
36 0.00 7 No Retail Yes
37 0.00 5 No Manufactured Housing Yes
38 0.00 7 No Hotel No
39 6250.00 7 Yes Industrial Yes
40 0.00 10 No Retail Yes
41 0.00 7 No Mixed Use No
42 0.00 7 No Office Yes
43 0.00 7 No Hotel Yes
44 0.00 5 No Multifamily Yes
44.01 5 Multifamily
44.02 5 Multifamily
45 0.00 7 No Office Yes
46 0.00 7 No Retail Yes
47 0.00 7 No Self Storage Yes
47.01 7 Self Storage
47.02 7 Self Storage
47.03 7 Self Storage
48 0.00 7 No Multifamily Yes
49 0.00 7 No Mixed Use Yes
50 0.00 7 No Multifamily No
51 0.00 7 No Retail Yes
52 0.00 7 No Retail Yes
53 0.00 5 No Retail Yes
54 0.00 7 No Office Yes
55 0.00 7 No Multifamily Yes
56 0.00 5 No Retail Yes
57 0.00 7 No Industrial Yes
58 0.00 5 No Retail Yes
59 0.00 10 Yes Industrial Yes
59.01 10 Industrial
59.02 10 Industrial
60 0.00 10 No Manufactured Housing Yes
61 0.00 7 Yes Multifamily Yes
62 0.00 7 Yes Office Yes
63 0.00 7 No Multifamily Yes
64 0.00 10 No Multifamily No
65 0.00 7 No Manufactured Housing Yes
66 0.00 7 No Office Yes
67 0.00 7 No Retail Yes
68 0.00 7 No Retail Yes
69 0.00 7 No Retail Yes
70 0.00 0 Yes Industrial Yes
70.01 0 Industrial
70.02 0 Industrial
70.03 0 Industrial
70.04 0 Industrial
70.05 0 Industrial
70.06 0 Industrial
70.07 0 Industrial
70.08 0 Industrial
70.09 0 Industrial
70.1 0 Industrial
70.11 0 Industrial
70.12 0 Industrial
70.13 0 Industrial
71 0.00 7 No Mixed Use Yes
72 0.00 7 No Office Yes
73 0.00 7 No Industrial Yes
74 0.00 10 No Manufactured Housing Yes
76 0.00 7 No Office Yes
77 0.00 7 No Hotel Yes
78 0.00 7 No Mixed Use Yes
79 0.00 7 No Retail Yes
80 0.00 7 No Mixed Use Yes
81 0.00 7 No Self Storage Yes
82 0.00 5 No Office No
83 0.00 7 No Retail Yes
84 0.00 7 No Mixed Use Yes
85 0.00 7 No Office Yes
86 0.00 10 No Manufactured Housing Yes
87 0.00 7 No Office Yes
88 0.00 7 Yes Office Yes
89 0.00 7 No Retail Yes
90 0.00 7 No Multifamily Yes
91 0.00 7 No Retail No
92 0.00 7 No Multifamily No
93 0.00 7 No Multifamily Yes
94 0.00 7 No Hotel Yes
94.01 7 Hotel
94.02 7 Hotel
95 0.00 7 No Office Yes
96 0.00 7 No Hotel Yes
97 0.00 7 No Mixed Use No
98 0.00 7 No Office Yes
99 0.00 7 Yes Office Yes
100 0.00 7 No Industrial Yes
101 0.00 7 No Retail Yes
102 0.00 7 No Retail Yes
103 0.00 7 No Office Yes
104 0.00 7 No Retail Yes
105 0.00 7 No Office No
106 0.00 7 No Mixed Use Yes
107 0.00 7 No Retail Yes
108 0.00 7 No Multifamily Yes
109 0.00 7 No Retail Yes
110 0.00 7 No Retail Yes
111 0.00 7 No Hotel Yes
112 0.00 7 No Industrial Yes
113 0.00 7 No Multifamily Yes
114 0.00 10 No Manufactured Housing Yes
115 0.00 7 No Office Yes
116 0.00 7 No Office Yes
117 0.00 8 Yes Office Yes
118 0.00 7 No Office Yes
119 0.00 7 Yes Office Yes
120 0.00 7 No Hotel Yes
121 0.00 7 No Retail Yes
122 0.00 7 No Retail Yes
123 0.00 7 No Retail Yes
124 0.00 10 No Manufactured Housing Yes
125 0.00 10 No Manufactured Housing Yes
126 0.00 10 No Manufactured Housing Yes
127 0.00 7 No Hotel No
128 0.00 7 No Multifamily Yes
129 0.00 7 No Hotel No
130 0.00 7 No Office Yes
131 0.00 7 No Retail No
132 0.00 7 No Retail Yes
133 0.00 7 No Multifamily No
134 0.00 7 No Retail Yes
135 0.00 10 No Manufactured Housing Yes
136 0.00 7 No Multifamily Yes
137 0.00 7 No Hotel Yes
138 0.00 7 No Multifamily Yes
139 0.00 5 No Multifamily Yes
140 0.00 7 No Retail Yes
141 0.00 7 No Retail Yes
142 0.00 7 No Retail Yes
143 0.00 7 No Retail No
144 0.00 7 No Hotel Yes
145 0.00 10 No Manufactured Housing Yes
146 0.00 7 No Manufactured Housing Yes
147 0.00 7 No Industrial Yes
148 0.00 7 No Office Yes
149 0.00 7 No Multifamily Yes
150 0.00 7 No Retail Yes
151 0.00 7 No Multifamily Yes
152 0.00 7 No Retail Yes
153 0.00 7 No Retail Yes
154 0.00 10 No Manufactured Housing Yes
155 0.00 7 No Retail Yes
155.01 0.00 7 Retail
155.02 0.00 7 Retail
156 0.00 7 No Office Yes
157 0.00 7 No Hotel No
158 0.00 7 No Self Storage Yes
159 0.00 7 No Various Yes
159.01 0.00 7 Retail
159.02 0.00 7 Retail
159.03 0.00 7 Office
160 0.00 7 No Retail Yes
161 0.00 7 No Self Storage Yes
162 0.00 7 No Multifamily Yes
163 0.00 10 No Manufactured Housing Yes
164 0.00 7 No Hotel Yes
165 0.00 7 No Office Yes
166 0.00 7 No Office Yes
167 0.00 7 Yes Retail Yes
168 0.00 7 No Office NAP
169 0.00 7 No Retail Yes
170 0.00 7 No Self Storage No
171 0.00 7 No Hotel Yes
172 0.00 15 No Industrial Yes
173 0.00 7 No Retail Yes
174 0.00 7 No Hotel Yes
175 0.00 7 No Retail Yes
176 0.00 7 Yes Office Yes
177 0.00 7 No Office No
178 0.00 7 No Industrial No
179 0.00 10 No Manufactured Housing Yes
180 0.00 10 No Manufactured Housing Yes
181 0.00 7 No Mixed Use Yes
182 0.00 7 No Retail Yes
183 0.00 7 No Multifamily Yes
184 0.00 7 Yes Retail Yes
185 0.00 7 No Retail Yes
186 0.00 7 No Office Yes
187 0.00 7 No Manufactured Housing Yes
188 0.00 7 No Retail Yes
189 0.00 7 No Retail Yes
190 0.00 7 Yes Office Yes
191 0.00 7 No Retail Yes
192 0.00 7 No Office Yes
193 0.00 7 No Various Yes
193.01 0.00 7 Retail
193.02 0.00 7 Office
194 0.00 10 No Manufactured Housing Yes
195 0.00 7 No Multifamily Yes
196 0.00 7 No Office Yes
197 0.00 7 No Hotel Yes
198 0.00 7 Yes Industrial Yes
199 0.00 7 No Office Yes
200 0.00 7 No Retail Yes
201 0.00 7 No Hotel Yes
202 0.00 7 No Multifamily Yes
203 0.00 7 No Industrial No
204 0.00 7 No Industrial No
205 0.00 7 No Multifamily No
206 0.00 7 No Manufactured Housing Yes
206.01 7 Manufactured Housing
206.02 7 Manufactured Housing
207 0.00 7 No Multifamily Yes
208 0.00 7 No Office No
209 0.00 7 Yes Retail Yes
210 0.00 10 No Multifamily No
211 0.00 7 No Office Yes
212 0.00 7 No Retail Yes
213 0.00 7 No Retail Yes
214 0.00 7 No Office No
215 0.00 10 Yes Retail Yes
216 0.00 7 Yes Retail Yes
217 0.00 7 No Mixed Use Yes
218 0.00 7 No Multifamily No
219 0.00 7 No Industrial Yes
220 0.00 7 No Office Yes
221 0.00 7 No Parking Garage Yes
222 0.00 7 No Retail Yes
223 0.00 10 No Multifamily Yes
224 0.00 15 No Industrial Yes
225 0.00 10 No Mixed Use Yes
226 0.00 7 No Multifamily Yes
227 0.00 7 No Retail Yes
228 0.00 7 No Retail No
229 0.00 7 No Multifamily No
230 0.00 7 No Retail Yes
231 0.00 7 No Manufactured Housing Yes
232 0.00 10 No Hotel Yes
233 0.00 7 No Retail Yes
234 0.00 7 No Multifamily Yes
235 0.00 7 Yes Retail Yes
236 0.00 7 No Manufactured Housing Yes
237 0.00 7 Yes Retail Yes
238 0.00 7 No Multifamily Yes
239 0.00 7 No Industrial Yes
240 0.00 7 No Retail Yes
241 0.00 7 No Mixed Use Yes
242 0.00 7 No Retail Yes
#N/A #N/A #N/A #N/A #N/A
Loan # Interest Accrual Period Loan Group Final Maturity Date Remaining Amortization Term for Balloon Loans
------ ----------------------- ---------- ------------------- ---------------------------------------------
1 Actual/360 1
2 Actual/360 1
3 Actual/360 1 360
4 Actual/360 1
5 Actual/360 1
5.01 Actual/360 1
5.02 Actual/360 1
5.03 Actual/360 1
5.04 Actual/360 1
5.05 Actual/360 1
5.06 Actual/360 1
5.07 Actual/360 1
5.08 Actual/360 1
5.09 Actual/360 1
5.1 Actual/360 1
5.11 Actual/360 1
5.12 Actual/360 1
5.13 Actual/360 1
5.14 Actual/360 1
5.15 Actual/360 1
6 Actual/360 1 360
7 Actual/360 1 360
8 Actual/360 1 360
9 Actual/360 1 360
10 Actual/360 1 360
11 Actual/360 1
12 Actual/360 1 360
12.01 Actual/360 1 360
12.02 Actual/360 1 360
12.03 Actual/360 1 360
12.04 Actual/360 1 360
12.05 Actual/360 1 360
12.06 Actual/360 1 360
12.07 Actual/360 1 360
12.08 Actual/360 1 360
13 Actual/360 2
13.01 Actual/360 2
13.02 Actual/360 2
14 Actual/360 1
15 Actual/360 1
16 Actual/360 1
16.01 Actual/360 1
16.02 Actual/360 1
16.03 Actual/360 1
16.04 Actual/360 1
16.05 Actual/360 1
16.06 Actual/360 1
16.07 Actual/360 1
16.08 Actual/360 1
16.09 Actual/360 1
16.1 Actual/360 1
16.11 Actual/360 1
16.12 Actual/360 1
16.13 Actual/360 1
16.14 Actual/360 1
16.15 Actual/360 1
16.16 Actual/360 1
16.17 Actual/360 1
16.18 Actual/360 1
16.19 Actual/360 1
16.2 Actual/360 1
17 Actual/360 1
18 Actual/360 2 240
19 Actual/360 1 360
19.01 Actual/360 1 360
19.02 Actual/360 1 360
19.03 Actual/360 1 360
19.04 Actual/360 1 360
19.05 Actual/360 1 360
19.06 Actual/360 1 360
19.07 Actual/360 1 360
19.08 Actual/360 1 360
19.09 Actual/360 1 360
20 Actual/360 1
21 Actual/360 1
22 Actual/360 1 360
23 Actual/360 1 360
24 Actual/360 2 360
24.01 Actual/360 2 360
24.02 Actual/360 2 360
24.03 Actual/360 2 360
25 Actual/360 1
26 Actual/360 1 360
27 Actual/360 1 300
28 Actual/360 1
29 Actual/360 1 360
30 Actual/360 2
31 Actual/360 1 240
32 Actual/360 1 360
33 Actual/360 2 360
34 Actual/360 1 360
35 Actual/360 1 360
36 Actual/360 1 360
37 Actual/360 2
38 Actual/360 1 360
39 Actual/360 1 360
40 Actual/360 1
41 Actual/360 1 360
42 Actual/360 1 300
43 Actual/360 1 360
44 Actual/360 2 360
44.01 Actual/360 2 360
44.02 Actual/360 2 360
45 Actual/360 1 300
46 Actual/360 1 360
47 Actual/360 1 360
47.01 Actual/360 1 360
47.02 Actual/360 1 360
47.03 Actual/360 1 360
48 Actual/360 2 360
49 Actual/360 1 360
50 Actual/360 2
51 Actual/360 1
52 Actual/360 1
53 Actual/360 1 360
54 Actual/360 1
55 Actual/360 2
56 Actual/360 1
57 Actual/360 1 360
58 Actual/360 1 360
59 Actual/360 1 360
59.01 Actual/360 1 360
59.02 Actual/360 1 360
60 Actual/360 2
61 Actual/360 2
62 Actual/360 1 360
63 Actual/360 2
64 30/360 2 360
65 Actual/360 2
66 Actual/360 1 360
67 Actual/360 1 360
68 Actual/360 1 360
69 Actual/360 1 360
70 Actual/360 1
70.01 Actual/360 1
70.02 Actual/360 1
70.03 Actual/360 1
70.04 Actual/360 1
70.05 Actual/360 1
70.06 Actual/360 1
70.07 Actual/360 1
70.08 Actual/360 1
70.09 Actual/360 1
70.1 Actual/360 1
70.11 Actual/360 1
70.12 Actual/360 1
70.13 Actual/360 1
71 Actual/360 1 360
72 Actual/360 1
73 Actual/360 1
74 Actual/360 2
76 Actual/360 1 300
77 Actual/360 1
78 Actual/360 1 360
79 Actual/360 1 360
80 Actual/360 1
81 Actual/360 1 360
82 Actual/360 1 360
83 Actual/360 1 360
84 Actual/360 1 360
85 Actual/360 1 360
86 Actual/360 2
87 Actual/360 1 360
88 Actual/360 1 360
89 Actual/360 1 360
90 Actual/360 2 360
91 Actual/360 1 360
92 Actual/360 2
93 Actual/360 2 360
94 Actual/360 1 300
94.01 Actual/360 1 300
94.02 Actual/360 1 300
95 Actual/360 1 360
96 Actual/360 1 360
97 Actual/360 1 360
98 Actual/360 1 360
99 Actual/360 1 360
100 Actual/360 1
101 Actual/360 1 360
102 Actual/360 1 360
103 Actual/360 1 360
104 Actual/360 1 360
105 Actual/360 1 360
106 Actual/360 1 360
107 Actual/360 1 360
108 Actual/360 2 360
109 Actual/360 1 360
110 Actual/360 1 360
111 Actual/360 1 360
112 Actual/360 1 360
113 Actual/360 2 360
114 Actual/360 2
115 Actual/360 1 360
116 Actual/360 1 360
117 Actual/360 1
118 Actual/360 1 360
119 Actual/360 1 360
120 Actual/360 1 360
121 Actual/360 1 360
122 Actual/360 1 360
123 Actual/360 1 360
124 Actual/360 2
125 Actual/360 2
126 Actual/360 2
127 Actual/360 1 360
128 Actual/360 2 360
129 Actual/360 1 360
130 Actual/360 1 360
131 Actual/360 1 360
132 Actual/360 1 360
133 Actual/360 2 360
134 Actual/360 1
135 Actual/360 2
136 Actual/360 2 360
137 Actual/360 1
138 Actual/360 2 360
139 Actual/360 2 360
140 Actual/360 1 360
141 Actual/360 1 360
142 Actual/360 1 360
143 Actual/360 1 360
144 Actual/360 1
145 Actual/360 2
146 Actual/360 2
147 Actual/360 1 360
148 Actual/360 1 360
149 Actual/360 2 360
150 Actual/360 1 360
151 Actual/360 2
152 Actual/360 1 360
153 Actual/360 1 360
154 Actual/360 2
155 Actual/360 1 240
155.01 Actual/360 1 240
155.02 Actual/360 1 240
156 Actual/360 1 360
157 Actual/360 1 360
158 Actual/360 1 360
159 Actual/360 1 360
159.01 Actual/360 1 360
159.02 Actual/360 1 360
159.03 Actual/360 1 360
160 Actual/360 1 360
161 Actual/360 1 360
162 Actual/360 2 360
163 Actual/360 2
164 Actual/360 1 360
165 Actual/360 1 360
166 Actual/360 1 360
167 Actual/360 1 360
168 Actual/360 1 360
169 Actual/360 1 360
170 Actual/360 1 300
171 Actual/360 1 300
172 Actual/360 1 360
173 Actual/360 1 360
174 Actual/360 1 360
175 Actual/360 1 360
176 Actual/360 1 360
177 Actual/360 1 360
178 Actual/360 1 360
179 Actual/360 2
180 Actual/360 2
181 Actual/360 1 360
182 Actual/360 1
183 Actual/360 2 360
184 Actual/360 1 360
185 Actual/360 1 360
186 Actual/360 1 360
187 Actual/360 2
188 Actual/360 1 360
189 Actual/360 1 360
190 Actual/360 1 264
191 Actual/360 1 360
192 Actual/360 1 360
193 Actual/360 1 360
193.01 Actual/360 1 360
193.02 Actual/360 1 360
194 Actual/360 2
195 Actual/360 2 360
196 Actual/360 1 360
197 Actual/360 1 360
198 Actual/360 1
199 Actual/360 1 360
200 Actual/360 1
201 Actual/360 1 300
202 Actual/360 2 360
203 Actual/360 1 360
204 Actual/360 1 360
205 Actual/360 2 360
206 Actual/360 2
206.01 Actual/360 2
206.02 Actual/360 2
207 Actual/360 2 360
208 Actual/360 1 300
209 Actual/360 1 360
210 30/360 2 360
211 Actual/360 1 360
212 Actual/360 1 360
213 Actual/360 1 360
214 Actual/360 1 360
215 Actual/360 1 300
216 Actual/360 1 360
217 Actual/360 1 300
218 Actual/360 2 360
219 Actual/360 1 300
220 Actual/360 1 360
221 Actual/360 1 360
222 Actual/360 1
223 Actual/360 2 360
224 Actual/360 1 360
225 Actual/360 2
226 Actual/360 2 360
227 Actual/360 1 360
228 Actual/360 1 360
229 Actual/360 2 360
230 Actual/360 1
231 Actual/360 2
232 Actual/360 1 360
233 Actual/360 1 360
234 Actual/360 2 360
235 Actual/360 1 360
236 Actual/360 2
237 Actual/360 1 360
238 Actual/360 2 360
239 Actual/360 1 360
240 Actual/360 1 360
241 Actual/360 1 360
242 Actual/360 1 360
#N/A #N/A #N/A #N/A
EXHIBIT C
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle Bank National Association
as Trustee and Paying Agent
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, JPMorgan 2007 CIBC19
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-CIBC19, Commercial Mortgage Pass-Through Certificates, Series
2007-CIBC19
------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling
and Servicing Agreement, dated as of June 14, 2007 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., as Depositor, Capmark Finance Inc. and Xxxxx Fargo Bank, N.A., as Master
Servicers, LNR Partners, Inc., as Special Servicer, and LaSalle Bank National
Association, as Trustee and as Paying Agent on behalf of the holders of X.X.
Xxxxxx Chase Commercial Mortgage Securities Trust 2007-CIBC19, Commercial
Mortgage Pass-Through Certificates, Series 2007-CIBC19 (the "Certificates") in
connection with the transfer by _________________ (the "Seller") to the
undersigned (the "Purchaser") of $_______________ aggregate Certificate Balance
of Class ___ Certificates (the "Certificate"). Capitalized terms used and not
otherwise defined herein shall have the respective meanings ascribed to such
terms in the Pooling and Servicing Agreement.
In connection with such transfer, the Purchaser hereby represents
and warrants to you and the addressees hereof as follows:
1. Check one of the following:*
[_] The Purchaser is not purchasing a Class R or Class LR Certificate
and the Purchaser is an institutional "accredited investor" (an
entity meeting the requirements of Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act of 1933, as amended
(the "Securities Act")) and has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of its investment in the Certificates, and the
Purchaser and any accounts for which it is acting are each able
to bear the economic risk of the Purchaser's or such account's
investment. The Purchaser is acquiring the Certificates purchased
by it for its own account or for one or more accounts (each of
which is an "institutional accredited investor") as to each of
which the Purchaser exercises sole investment discretion. The
Purchaser hereby undertakes to reimburse the Trust Fund for any
costs incurred by it in connection with this transfer.
[_] The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the
Securities Act of 1933, as amended (the "Securities Act"). The
Purchaser is aware that the transfer is being made in reliance on
Rule 144A, and the Purchaser has had the opportunity to obtain
the information required to be provided pursuant to paragraph
(d)(4)(i) of Rule 144A.
2. The Purchaser's intention is to acquire the Certificate (a)
for investment for the Purchaser's own account or (b) for resale (i) to
"qualified institutional buyers" in transactions under Rule 144A, and not in any
event with the view to, or for resale in connection with, any distribution
thereof, (ii) (other than with respect to a Certificate or a Residual
Certificate) to institutional "accredited investors" meeting the requirements of
Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities
Act or (iii) (other than with respect to a Residual Certificate) pursuant to any
other exemption from the registration requirements of the Securities Act,
subject in the case of clauses (ii) and (iii) above to (w) the receipt by the
Certificate Registrar of a letter substantially in the form hereof, (x) the
receipt by the Certificate Registrar of an opinion of counsel acceptable to the
Certificate Registrar that such reoffer, resale, pledge or transfer is in
compliance with the Securities Act, (y) the receipt by the Certificate Registrar
of such other evidence acceptable to the Certificate Registrar that such
reoffer, resale, pledge or transfer is in compliance with the Securities Act and
other applicable laws and (z) a written undertaking to reimburse the Trust for
any costs incurred by it in connection with the proposed transfer. The Purchaser
understands that the Certificate (and any subsequent Certificate) has not been
registered under the Securities Act, by reason of a specified exemption from the
registration provisions of the Securities Act which depends upon, among other
things, the bona fide nature of the Purchaser's investment intent (or intent to
resell to only certain investors in certain exempted transactions) as expressed
herein.
3. The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the opportunity
to ask questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Private Placement Memorandum.
4. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the Securities Act or the securities laws of any State or any
other jurisdiction, and that the Certificate cannot be resold unless it is
registered or qualified thereunder or unless an exemption from such registration
or qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner of
a Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Registrar and all Certificateholders
present and future.
6. The Purchaser will not sell or otherwise transfer any portion
of the Certificate or Certificates, except in compliance with Section 5.02 of
the Pooling and Servicing Agreement.
7. Check one of the following:**
[_] The Purchaser is a U.S. Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or
successor form).
[_] The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be
withheld by the Paying Agent (or its agent) with respect to
distributions to be made on the Certificate. The Purchaser has
attached hereto [(i) a duly executed IRS Form W-8BEN (or
successor form), which identifies such Purchaser as the
beneficial owner of the Certificate and states that such
Purchaser is not a U.S. Person, (ii) IRS Form W-8IMY (with all
appropriate attachments) or (iii)]*** two duly executed copies of
IRS Form W-8ECI (or successor form), which identify such
Purchaser as the beneficial owner of the Certificate and state
that interest and original issue discount on the Certificate and
Permitted Investments is, or is expected to be, effectively
connected with a U.S. trade or business. The Purchaser agrees to
provide to the Certificate Registrar updated [IRS Form W-8BEN,
IRS Form W-8IMY or]*** IRS Form W-8ECI, [as the case may be,]***
any applicable successor IRS forms, or such other certifications
as the Certificate Registrar may reasonably request, on or before
the date that any such IRS form or certification expires or
becomes obsolete, or promptly after the occurrence of any event
requiring a change in the most recent IRS form of certification
furnished by it to the Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United
States, a corporation or partnership (except to the extent provided in
applicable Treasury Regulations) or other entity created or organized in, or
under the laws of, the United States, any State thereof or the District of
Columbia, including any entity treated as a corporation or partnership for
federal income tax purposes, an estate whose income is subject to United States
federal income tax regardless of its source or a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more such U.S. Persons have the authority to control all
substantial decisions of such trust (or, to the extent provided in applicable
Treasury Regulations, certain trusts in existence on August 20, 1996 which are
eligible to elect to be treated as U.S. Persons).
8. Please make all payments due on the Certificates:****
[_] (a) by wire transfer to the following account at a bank or
entity in New York, New York, having appropriate
facilities therefor:
Bank:_____________________________________________________
ABA #:____________________________________________________
Account #:________________________________________________
Attention:________________________________________________
[_] (b) by mailing a check or draft to the following address:
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
9. If the Purchaser is purchasing a Class R or Class LR
Certificate, the Purchaser is not a partnership (including any entity treated as
a partnership for U.S. federal income tax purposes), any interest in which is
owned, directly or indirectly, through one or more partnerships, trusts or other
pass-through entities by a non-U.S. Person.
Very truly yours,
_________________________________
[The Purchaser]
By: _____________________________
Name:
Title:
Dated:
---------------------------
* Purchaser must include one of the following two certifications.
** Each Purchaser must include one of the two alternative certifications.
*** Does not apply to a transfer of Class R or Class LR Certificates.
**** Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b). For holders of Definitive Certificates, wire transfers are
only available if such holder's Definitive Certificates have an aggregate
Certificate Balance or Notional Amount, as applicable, of at least U.S.
$5,000,000.
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO SECTION
860E(e)(4) OF THE INTERNAL
REVENUE CODE OF 1986, AS
AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That [he] [she] is [Title of Officer] of [Name of Transferee]
(the "Transferee"), a [description of type of entity] duly organized and
existing under the laws of the [State of __________] [United States], on behalf
of which [he/she] makes this affidavit.
2. That the Transferee's Taxpayer Identification Number is
[__________].
3. That the Transferee of a X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Trust 2007-CIBC19, Commercial Mortgage Pass-Through Certificates,
Series 2007-CIBC19, Class [R] [LR] Certificate (the "Class [R] [LR]
Certificate") is not a Disqualified Organization (as defined below) or an agent
thereof (including nominee, middleman or other similar person) (an "Agent"), or
an ERISA Prohibited Holder or a Non-U.S. Person (as defined below). For these
purposes, a "Disqualified Organization" means any of (i) the United States, any
State or political subdivision thereof, any possession of the United States, or
any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, majority of its board of directors is not selected by such governmental
unit), (ii) a foreign government, any international organization, or any agency
or instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Master Servicers based upon
an Opinion of Counsel that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause any of the [Upper-Tier REMIC], [the
Lower-Tier REMIC] to fail to qualify as a REMIC, or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions. For these purposes, "ERISA Prohibited
Holder" means an employee benefit plan subject to Section 406 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of
the Code or a governmental plan (as defined in Section 3(32) of ERISA) or a
church plan (as defined in Section 3(33) of ERISA) for which no election has
been made under Section 410(d) of the Code subject to any federal, state or
local law which is, to a material extent, similar to the foregoing provisions of
ERISA or the Code (each a "Plan") or a person acting on behalf of or investing
the assets of such a Plan. For these purposes, "Non-U.S. Person" means any
person other than a U.S. Person (within the meaning of Section 7701(a)(30) of
the Code), unless, with respect to the Transfer of a Residual Certificate, (i)
such person holds such Residual Certificate in connection with the conduct of a
trade or business within the United States and furnishes the Transferor and the
Certificate Registrar with an effective Internal Revenue Service Form W-8ECI or
(ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes; provided,
that a partnership shall be considered a Non-U.S. Person (and clause (i) of this
sentence shall not apply) if any of its interests are (or are permitted to be
under the related partnership agreement) owned, directly or indirectly (other
than through a U.S. corporation), through any partnership, trust or other
pass-through entity, by any person that is a Non-U.S. Person.
4. That the Transferee historically has paid its debts as they
have come due and intends to pay its debts as they come due in the future and
the Transferee intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Transferee understands that it may incur tax
liabilities with respect to the Class [R] [LR] Certificate in excess of any cash
flow generated by the Class [R] [LR] Certificate.
6. That the Transferee agrees not to transfer the Class [R] [LR]
Certificate to any Person or entity unless (a) the Transferee has received from
such Person or entity an affidavit substantially in the form of this Transfer
Affidavit and (b) the Transferee provides to the Certificate Registrar a letter
substantially in the form of Exhibit D-2 to the Pooling and Servicing Agreement
(as defined below) certifying that it has no actual knowledge that such Person
or entity is a Disqualified Organization, or an Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person and that it has no reason to know that
such Person or entity does not satisfy the requirements set forth in paragraph 4
hereof.
7. That the Transferee agrees to such amendments of the Pooling
and Servicing Agreement, dated June 14, 2007, by and among X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., as Depositor, Capmark Finance Inc. and
Xxxxx Fargo Bank, N.A., as Master Servicers, LNR Partners, Inc., as Special
Servicer, and LaSalle Bank National Association, as Trustee and as Paying Agent
(the "Pooling and Servicing Agreement") as may be required to further effectuate
the restrictions on transfer of the Class [R] [LR] Certificate to such a
Disqualified Organization, or an Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person. To the extent not defined herein, the capitalized terms used
herein shall have the meanings assigned thereto in the Pooling and Servicing
Agreement.
8. That, if a "tax matters person" is required to be designated
with respect to [the Upper-Tier REMIC], [the Lower-Tier REMIC], the Transferee
agrees to act as "tax matters person" and to perform the functions of "tax
matters person" of [the Upper-Tier REMIC] [the Lower-Tier REMIC] pursuant to
Section 10.01(c) of the Pooling and Servicing Agreement, and, in such event,
agrees to the irrevocable designation of the Trustee as the Transferee's agent
in performing the function of "tax matters person."
9. That the Transferee has reviewed, and agrees to be bound by
and to abide by, the provisions of Section 5.02(c) of the Pooling and Servicing
Agreement concerning registration of the transfer and exchange of the Class [R]
[LR] Certificate.
10. That the Transferee will not cause income from the Class
[R][LR] Certificate to be attributable to, a foreign permanent establishment or
fixed base, within the meaning of an applicable income tax treaty, of the
Transferee or any other U.S. person.
11. Check one of the following:
[_] That the present value of the anticipated tax liabilities
associated with holding the Class [R] [LR] Certificate does not exceed the sum
of:
(i) the present value of any consideration given to the
Transferee to acquire such Class [R][LR] Certificate;
(ii) the present value of the expected future distributions on
such Class [R] [LR] Certificate; and
(iii) the present value of the anticipated tax savings
associated with holding such Class [R] [LR] Certificate as the related REMIC
generates losses.
For purposes of this calculation, (i) the Transferee is assumed
to pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
[_] That the transfer of the Class [R] [LR] Certificate complies
with U.S. Treasury Regulations Sections 1.860G-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Sections 1.860E-1(c)(6)(i), as
to which income from Class [R] [LR] Certificate will only
be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S.
Treasury Regulation Section 1.860E-1(c)(6)(ii)) in excess
of $100 million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Class [R] [LR]
Certificate only to another "eligible corporation," as
defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the
requirements of U.S. Treasury Regulations Sections
1.860G-1(c)(4)(i), (ii) and (iii) and 1.860E-1(c)(5); and
(iv) the Transferee determined the consideration paid to it to
acquire the Class [R] [LR] Certificate based on reasonable
market assumptions (including, but not limited to,
borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax
rates and other factors specific to the Transferee) that
it has determined in good faith.
[_] None of the above.
IN WITNESS WHEREOF, the Transferee has caused this instrument to
be executed on its behalf, by its [Title of Officer] this _____ day of
__________, 20__.
[NAME OF TRANSFEREE]
By: _______________________________
[Name of Officer]
[Title of Officer]
By: _______________________________
[Name of Officer]
[Title of Officer]
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Transferee, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and the
free act and deed of the Transferee.
Subscribed and sworn before me this ___ day of __________, 20__.
_______________________________________________
NOTARY PUBLIC
COUNTY OF _____________________________________
STATE OF ______________________________________
My commission expires the ___ day of __________, 20__.
EXHIBIT D-2
FORM OF TRANSFEROR LETTER
[Date]
LaSalle Bank National Association
as Certificate Registrar
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, JPMorgan 2007 CIBC19
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Series 2007-CIBC19
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2007-CIBC19,
Commercial Mortgage Pass-Through Certificates,
Series 2007-CIBC19
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee],
and has no actual knowledge that such affidavit is not true and has no reason to
know that the requirements set forth in paragraphs 3, 4 and 10 thereof are not
satisfied or, after conducting a reasonable investigation of the financial
condition of the transferee, that the information contained in paragraphs 3, 4
and 10 thereof is not true.
Very truly yours,
[Transferor]
__________________
EXHIBIT E
FORM OF REQUEST FOR RELEASE
__________[Date]
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, JPMorgan 2007 CIBC19
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2007-CIBC19, Commercial Mortgage Pass-Through Certificates,
Series 2007-CIBC19,
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 June 14, 2007 (the "Pooling and Servicing Agreement"), by and
among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor,
Capmark Finance Inc. and Xxxxx Fargo Bank, N.A., as Master Servicers, LNR
Partners, Inc., as Special Servicer, and you, as Trustee and Paying Agent, the
undersigned hereby requests a release of the Mortgage File (or the portion
thereof specified below) held by or on behalf of you as Trustee with respect to
the following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
______1. Mortgage Loan paid in full. The [Master Servicers]
[Special Servicer] hereby certifies that all
amounts received in connection with the Mortgage
Loan have been or will be credited to the
Certificate Account pursuant to the Pooling and
Servicing Agreement.
______ 2. The Mortgage Loan is being foreclosed.
______ 3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[MASTER SERVICERS] [SPECIAL SERVICER]
By: _________________________________
Name:____________________________
Title:___________________________
EXHIBIT F
FORM OF ERISA REPRESENTATION LETTER
LaSalle Bank National Association
as Trustee and Paying Agent
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, JPMorgan 2007 CIBC19
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-CIBC19,
Commercial Mortgage Pass-Through Certificates,
Series 2007-CIBC19
------------------------------------------------------------
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase
$____________ initial Certificate Balance of X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Trust 2007-CIBC19, Commercial Mortgage Pass-Through
Certificates, Series 2007-CIBC19, Class __ (the "Certificate") issued pursuant
to that certain Pooling and Servicing Agreement, dated June 14, 2007 (the
"Pooling and Servicing Agreement"), by and among X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., as depositor ("Depositor"), Capmark Finance Inc. and
Xxxxx Fargo Bank, N.A., as master servicers ("Master Servicers"), LNR Partners,
Inc., as special servicer ("Special Servicer"), and LaSalle Bank National
Association, as trustee ("Trustee"), and as paying agent ("Paying Agent").
Capitalized terms used and not otherwise defined herein have the respective
meanings ascribed to such terms in the Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby
represents and warrants to you as follows:
1. The Purchaser is not (a) an employee benefit plan subject to
the fiduciary responsibility provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code"), or a governmental plan (as
defined in Section 3(32) of ERISA) or a church plan (as defined in Section 3(33)
of ERISA) for which no election has been made under Section 410(d) of the Code,
subject to any federal, state or local law ("Similar Law") which is, to a
material extent, similar to the foregoing provisions of ERISA or the Code (each
a "Plan") or (b) a person acting on behalf of or using the assets of any such
Plan (including an entity whose underlying assets include Plan assets by reason
of investment in the entity by such a Plan or Plans and the application of
Department of Labor Regulation ss. 2510.3-101), other than an insurance company
using the assets of its "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption ("PTCE")
95-60) under circumstances whereby the purchase and holding of Offered Private
Certificates by such insurance company would be exempt from the prohibited
transaction provisions of ERISA and the Code under Sections I and III of PTCE
95-60.
2. The Purchaser understands that if the Purchaser is a Person
referred to in 1(a) or (b) above, such Purchaser is required to provide to the
Certificate Registrar an Opinion of Counsel in form and substance satisfactory
to the Certificate Registrar and the Depositor to the effect that the
acquisition and holding of such Certificate by such purchaser or transferee will
not constitute or result in a "prohibited transaction" within the meaning of
ERISA, Section 4975 of the Code or any Similar Law, and will not subject the
Paying Agent, the Certificate Registrar, the Master 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 Paying Agent, the
Dealers, the Certificate Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___ day of _____________, 20__.
Very truly yours,
_________________________________
[The Purchaser]
By: _____________________________
Name:
Title:
EXHIBIT G
FORM OF STATEMENT TO CERTIFICATEHOLDERS
[See Annex C to the Prospectus Supplement dated June 5, 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 "LaSalle Bank National Association, as
Trustee for the registered holders of X.X. Xxxxxx Chase Commercial Mortgage
Securities Trust 2007-CIBC19, Commercial Mortgage Pass-Through Certificates,
Series 2007-CIBC19" (the "Assignee"), having an office at 000 X. XxXxxxx Xxxxxx,
Xxxxx 0000 Xxxxxxx, Xxxxxxxx 00000, Attn: X.X. Xxxxxx Commercial Mortgage
Securities Corp., Series 2007-CIBC19, 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
LaSalle Bank National Association
as Trustee and Paying Agent
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, JPMorgan 2006 CIBC17
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-CIBC19,
Commercial Mortgage Pass-Through Certificates, Series
2007-CIBC19 Class [__]
------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated June 14, 2007 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., as Depositor, Capmark Finance Inc. and Xxxxx Fargo Bank, N.A., as Master
Servicers, LNR Partners, Inc., as Special Servicer, and LaSalle Bank National
Association, as Trustee and as Paying Agent, on behalf of the holders of X.X.
Xxxxxx Chase Commercial Mortgage Securities Trust 2007-CIBC19, Commercial
Mortgage Pass-Through Certificates, Series 2007-CIBC19, Class __ (the
"Certificates") in connection with the transfer by the undersigned (the
"Transferor") to _________________ (the "Transferee") of $__________________
[Certificate Balance] [Notional Amount]of Certificates, in fully registered form
(each, an "Definitive Certificate"), or a beneficial interest of such aggregate
[Certificate Balance] [Notional Amount] in the Regulation S Book-Entry
Certificate (the "Book-Entry Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
Capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, the Transferor does hereby
certify that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a
person in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting
on its behalf reasonably believed that the Transferee was outside
the United States] [the transaction was executed in, on or
through the facilities of a designated offshore securities market
and neither the undersigned nor any person acting on its behalf
knows that the transaction was pre-arranged with a buyer in the
United States];*
(3) the transferee is not a U.S. Person within the meaning of
Rule 902(o) of Regulation S nor a person acting for the account
or benefit of a U.S. Person, and upon completion of the
transaction, the Transferred Interest will be held with the
Depository through [Euroclear] [Clearstream];**
(4) no directed selling efforts have been made in contravention
of the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as applicable; and
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master 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
LaSalle Bank National Association
as Certificate Registrar
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, JPMorgan 2007 CIBC19
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-CIBC19,
Commercial Mortgage Pass-Through Certificates, Series
2007-CIBC19 Class [__]
------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) the
Pooling and Servicing Agreement, dated June 14, 2007 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., as Depositor, Capmark Finance Inc. and Xxxxx Fargo Bank, N.A., as Master
Servicers, LNR Partners, Inc., as Special Servicer, and LaSalle Bank National
Association, as Trustee and as Paying Agent, on behalf of the holders of X.X.
Xxxxxx Chase Commercial Mortgage Securities Trust 2007-CIBC19, Commercial
Mortgage Pass-Through Certificates, Series 2007-CIBC19, Class __ (the
"Certificates") in connection with the transfer by the undersigned (the
"Transferor") to _________________ (the "Transferee") of $__________________
[Certificate Balance][Notional Amount] of Certificates, in fully registered form
(each, an "Definitive Certificate"), or a beneficial interest of such aggregate
[Certificate Balance][Notional Amount] in the Regulation S Book-Entry
Certificate (the "Book-Entry Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
Capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, the Transferor does hereby
certify that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a
person in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting
on its behalf reasonably believed that the Transferee was outside
the United States] [the transaction was executed in, on or
through the facilities of a designated offshore securities market
and neither the undersigned nor any person acting on its behalf
knows that the transaction was pre-arranged with a buyer in the
United States];*
(3) no directed selling efforts have been made in contravention
of the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master 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
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, JPMorgan 2007 CIBC19
Capmark Finance Inc.
000 Xxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxx Fargo Bank, N.A.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-CIBC19
Commercial Mortgage Pass-Through Certificates, Series
2007-CIBC19
-----------------------------------------------------
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 June 14, 2007 (the "Pooling and Servicing Agreement"), by and
among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as depositor
("Depositor"), Capmark Finance Inc. and Xxxxx Fargo Bank, N.A., as master
servicers ("Master Servicers"), LNR Partners, Inc., as special servicer
("Special Servicer"), and LaSalle Bank National Association, as Trustee
("Trustee") and as Paying Agent ("Paying Agent"). Capitalized terms used herein
and not otherwise defined shall have the meaning set forth in the Pooling and
Servicing Agreement.
The undersigned, holder of the Purchase Option (the "Option
Holder"), [is the Controlling Class Certificateholder] [acquired its Purchase
Option from the Controlling Class Certificateholder on ___________] [is a
Special Servicer] [acquired its Purchase Option from a Special Servicer].
The undersigned Option Holder is exercising its Purchase Option
at the cash price of $______________, which amount equals or exceeds the Option
Price, as defined in Section 3.18(a)(ii) of the Pooling and Servicing Agreement.
Within ten (10) Business Days of its receipt of the Master Servicers' notice
confirming that the exercise of its Purchase Option is effective, [the
undersigned Option Holder] [______________, an Affiliate of the undersigned
Option Holder] will deliver the Option Price to or at the direction of the
Master Servicers in exchange for the release of the Mortgage Loan, the related
Mortgaged Property and delivery of the related Mortgage File.
The undersigned Option Holder agrees that it shall prepare and
provide the Master Servicers with such instruments of transfer or assignment, in
each case without recourse, as shall be reasonably necessary to vest in it or
its designee the ownership of Mortgage Loan [__], together with such other
documents or instruments as the Master Servicers shall reasonably require to
consummate the purchase contemplated hereby.
The undersigned Option Holder acknowledges and agrees that its
exercise of its Purchase Option Notice may not be revoked and, further, that
upon receipt of the Master Servicers' notice confirming that the exercise of its
Purchase Option is effective, the undersigned Option Holder, or its designee,
shall be obligated to close its purchase of Mortgage Loan ___ in accordance with
the terms and conditions of this letter and of the Pooling and Servicing
Agreement.
Very truly yours,
[Option Holder]
By:_________________________________
Name:
Title:
[By signing this letter in the space provided below, the
[Controlling Class Certificateholder] [a Special Servicer] hereby acknowledges
and affirms that it transferred its Purchase Option to the Option Holder
identified above on [_________].
[_______________________]
By:______________________
Name:
Title:]
EXHIBIT K
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
as Trustee and Paying Agent
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, JPMorgan 2007 CIBC19
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-CIBC19, Commercial Mortgage Pass-Through
Certificates, Series 2007-CIBC19 Class [__]
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated June 14, 2007 (the "Pooling and Servicing Agreement"), by and among X.X.
Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor, Capmark Finance
Inc. and Xxxxx Fargo Bank, N.A., as Master Servicers, LNR Partners, Inc., as
Special Servicer, and LaSalle Bank National Association, as Trustee and as
Paying Agent, on behalf of the holders of X.X. Xxxxxx Chase Commercial Mortgage
Securities Trust 2007-CIBC19, Commercial Mortgage Pass-Through Certificates,
Series 2007-CIBC19. 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.
--------------------
* Select appropriate depository.
In connection with such request and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and pursuant to and in accordance with Regulation S
under the Securities Act of 1933, as amended (the "Securities Act"), and
accordingly the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting
on its behalf reasonably believed that the transferee was outside
the United States] [the transaction was executed in, on or
through the facilities of a designated offshore securities market
and neither the transferor nor any person acting on its behalf
knows that the transaction was pre-arranged with a buyer in the
United States],*
(3) the transferee is not a U.S. Person within the meaning of
Rule 902(o) of Regulation S nor a Person acting for the account
or benefit of a U.S. Person,
(4) no directed selling efforts have been made in contravention
of the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as applicable,
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act, and
(6) upon completion of the transaction, the beneficial interest
being transferred as described above will be held with the
Depository through [Euroclear] [Clearstream].**
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master 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.
** Select appropriate depository.
EXHIBIT L
[RESERVED]
EXHIBIT M
Controlling Class Certificateholder's Reports Checklist
Information Format Frequency
----------- ------ ---------
Property Operating Statement (Master Actual PDF/TIF As received/Quarterly
Servicer)*
Property Rent Roll (Master Servicer)* Actual PDF/TIF As received/Quarterly
Other Financials as required by loan Actual PDF/TIF As received
documents (Master Servicer)
Property Inspection (Master Servicer)* Actual PDF/TIF As received/Quarterly
Payments Received After Determination Monthly Excel P&I Advance Date
Date Report (Master Servicer)(1)
Mortgage Loans Delinquent Report Monthly Excel 30th of each month
(Master Servicer)(2)
Interest on Advance Reconciliation Monthly Excel Distribution Date
(Master Servicer)
CMSA Setup File (Issuer/Master Servicer) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Property File (Master Servicer) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Loan Periodic Update File (Master CMSA IRP Access/Excel Monthly/Distribution Date
Servicer)
CMSA Financial File (Master Servicer) CMSA IRP Access/Excel Monthly/Distribution Date
Distribution Statement (Paying Agent) Monthly Excel/PDF Monthly/Distribution Date
CMSA Bond File (Paying Agent) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Collateral File (Trustee) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Supplemental Reports (Master CMSA IRP Access/Excel Monthly/Distribution Date
Servicer)
Operating Statement Analysis Report CMSA IRP Access/Excel Monthly/Distribution Date
(Master Servicer)*
NOI Adjustment Worksheet (Master CMSA IRP Access/Excel Monthly/Distribution Date
Servicer)*
Documentation Exceptions Report Quarterly Access/Excel Monthly/Distribution Date
(Trustee)
* Submit electronically with ARCap Naming Convention.
Footnotes:
(1) On the P&I Advance Date following the Determination Date for the related
Bond Certificateholder Distribution, a list of all mortgage loans which are
delinquent as to the applicable Distribution Period on the P&I Advance Date.
This list should represent all delinquent loans that required a P&I Advance
be made.
(2) On the last day of the month (30th), for all delinquencies reported in #1
above, a list of a) all mortgage loans which remain delinquent for such
Distribution period (along with the number of days delinquent) accompanied
with any reason, in the Master Servicer's opinion, for the mortgage loans
continued delinquency, along with an explanation of the Master Servicer's
attempts to cure.
EXHIBIT N
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE AFTER RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, JPMorgan 2007 CIBC19
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-CIBC19,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC19,
Class [__]
------------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated June 14, 2007 (the "Pooling and Servicing Agreement"), by and among X.X.
Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor, Capmark Finance
Inc. and Xxxxx Fargo Bank, N.A., as Master Servicers, LNR Partners, Inc., as
Special Servicer, and LaSalle Bank National Association, as Trustee and as
Paying Agent, on behalf of the holders of X.X. Xxxxxx Chase Commercial Mortgage
Securities Trust 2007-CIBC19, Commercial Mortgage Pass-Through Certificates,
Series 2007-CIBC19. Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are held
in the form of the Rule 144A Book-Entry Certificate (CUSIP No. ________) with
the Depository in the name of [insert name of transferor] (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in the
Certificates for an interest in the Regulation S Book-Entry Certificate (Common
Code No. _____).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and, (i) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States;
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting
on its behalf reasonably believed that the transferee was outside
the United States] [the transaction was executed in, on or
through the facilities of a designated offshore securities market
and neither the Transferor nor any person acting on its behalf
knows that the transaction was pre-arranged with a buyer in the
United States];*
(3) no directed selling efforts have been made in contravention
of the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master 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 OF
REGULATION S BOOK-ENTRY CERTIFICATE
TO RULE 144A GLOBAL BOOK-ENTRY CERTIFICATE
DURING RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
As Trustee and Paying Agent
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, JPMorgan 2007 CIBC19
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-CIBC19,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC19,
Class[__]
------------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated June 14, 2007 (the "Pooling and Servicing Agreement"), by and among X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as Depositor, Capmark Finance
Inc. and Xxxxx Fargo Bank, N.A., as Master Servicers, LNR Partners, Inc., as
Special Servicer, and LaSalle Bank National Association, as Trustee and as
Paying Agent, on behalf of the holders of X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Trust 2007-CIBC19, Commercial Mortgage Pass-Through Certificates,
Series 2007-CIBC19. Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are held
in the form of the Regulation S Book-Entry Certificate (CUSIP No. _______) with
[Euroclear] [Clearstream]* (Common Code No.__________) through the Depository in
the name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Certificates for an
interest in the Regulation 144A Book-Entry Certificate (CUSIP No.____________).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth in
the Pooling and Servicing Agreement and (ii) Rule 144A under the Securities Act
to a transferee that the Transferor reasonably believes is purchasing the
Certificates for its own account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any
jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master Servicers, the Special Servicer and Initial Purchasers of the
offering of the Certificates.
[Insert Name of Transferor]
By: ________________________________
Name:
Title:
Dated:
---------------
* Select appropriate depository.
EXHIBIT P
FORM OF TRANSFER CERTIFICATE FOR REGULATION S
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
LaSalle Bank National Association
As Certificate Registrar.
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, JPMorgan 2007 CIBC19
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-CIBC19,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC19,
Class [__]
------------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated June 14, 2007 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., as Depositor, Capmark Finance Inc. and Xxxxx Fargo Bank, N.A., as Master
Servicers, LNR Partners, Inc., as Special Servicer, and LaSalle Bank National
Association, as Trustee and as Paying Agent, on behalf of the holders of X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-CIBC19, Commercial
Mortgage Pass-Through Certificates, Series 2007-CIBC19 in connection with the
transfer by _______________ of a beneficial interest of $___________
[Certificate Balance] [Notional Amount] in a Book-Entry Certificate during the
Restricted Period to the undersigned (the "Transferee"). The Transferee desires
to beneficially own such transferred interest in the form of the Regulation S
Book-Entry Certificate. Capitalized terms used but not defined herein shall have
the meanings given to them in the Pooling and Servicing Agreement.
In connection with such transfer, the Transferee does hereby
certify that it is not a "U.S. Person" (within the meaning of Rule 902
Regulation S under the Securities Act of 1933, as amended). This certificate and
the statements contained herein are made for your benefit and the benefit of the
Depositor, the Trustee, the Paying Agent, the Master Servicers and the Special
Servicer.
[Insert Name of Transferor]
By: __________________________________
Name:
Title:
Dated:
EXHIBIT Q
INITIAL COMPANION HOLDERS
CBA Mezzanine Capital Finance, LLC shall be the initial Companion Holder
for the Green Hills Corporate Center Companion Loan, ABB Automation, Inc.
Companion Loan, Cumberland Tech Center Companion Loan, Holiday Inn Express -
Temecula Companion Loan and the Veteran's Parkway Companion Loan.
The addresses of CBA Mezzanine Capital Finance, LLC is listed in Section
12.05 of this Agreement.
EXHIBIT R
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
To: Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance Group
From: [Capmark Finance Inc.][Xxxxx Fargo Bank, N.A.], in its
capacity as Master Servicer (the "Master Servicer") under
the Pooling and Servicing Agreement dated as of June 14,
2007 (the "Pooling and Servicing Agreement"), among the
Master Servicer, LaSalle Bank National Association, as
Trustee and Paying Agent, and others.
Date: _________, 20___
Re: X.X. Xxxxxx Commercial Mortgage Securities Trust
2007-CIBC19, Commercial Mortgage Pass-Through
Certificates, Series 2007-CIBC19
Mortgage Loan (the "Mortgage Loan") identified by loan
number _____ on the Mortgage Loan Schedule attached to the
Pooling and Servicing Agreement and heretofore secured by
the Mortgaged Properties identified on the Mortgage Loan
Schedule by the following names:____________________
____________________
Reference is made to the Pooling and Servicing Agreement
described above. Capitalized terms used but not defined herein have the meanings
assigned to such terms in the Pooling and Servicing Agreement.
As Master Servicer under the Pooling and Servicing Agreement, we
hereby:
(a) Notify you that the Mortgagor has consummated a defeasance of
the Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type
checked below:
____ a full defeasance of the entire principal balance of the
Mortgage Loan; or
____ a partial defeasance of a portion of the principal balance
of the Mortgage Loan that represents and, an allocated loan
amount of $____________ or _______% of the entire principal
balance of the Mortgage Loan;
(b) Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A hereto, which
exceptions the Master Servicer has determined, consistent with the Servicing
Standards, will have no material adverse effect on the Mortgage Loan or the
defeasance transaction:
(i) The Mortgage Loan documents permit the defeasance, and the
terms and conditions for defeasance specified therein were satisfied in
all material respects in completing the defeasance.
(ii) The defeasance was consummated on __________, 20__.
(iii) The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section 2(a)(16) of the
Investment Company Act of 1940 as amended (15 U.S.C. 80A1), (ii) are
listed as "Qualified Investments for `AAA' Financings" under Paragraphs
1, 2 or 3 of "Cash Flow Approach" in Standard & Poor's Public Finance
Criteria 2000, as amended to the date of the defeasance, (iii) are rated
`AAA' by [S&P], (iv) if they include a principal obligation, the
principal due at maturity cannot vary or change, and (v) are not subject
to prepayment, call or early redemption.
(iv) The Master Servicer received an opinion of counsel (from
counsel approved by the Master Servicer in accordance with the Servicing
Standard) that the defeasance will not result in an Adverse REMIC Event.
(v) The Master Servicer determined that the defeasance collateral
will be owned by an entity (the "Defeasance Obligor") that is a
Single-Purpose Entity (as defined in [Standard & Poor's Structured
Finance Ratings Real Estate Finance Criteria, as amended to the date of
the defeasance (the "S&P Criteria"))] as of the date of the defeasance,
and after the defeasance owns no assets other than the defeasance
collateral and real property securing Mortgage Loans included in the
pool.
(vi) The Master Servicer received written confirmation of the
crediting of the defeasance collateral to an Eligible Account (as defined
in the [S&P Criteria]) in the name of the Defeasance Obligor, which
account is maintained as a securities account by a securities
intermediary and has been pledged to the Trustee.
(vii) The agreements executed in connection with the defeasance
(i) grant control of the pledged securities account to Trustee, (ii)
require the securities intermediary to make the scheduled payments on the
Mortgage Loan from the proceeds of the defeasance collateral directly to
the Master Servicer's collection account in the amounts and on the dates
specified in the Mortgage Loan documents or, in a partial defeasance, the
portion of such scheduled payments attributed to the allocated loan
amount for the real property defeased, increased by any defeasance
premium specified in the Mortgage Loan documents (the "Scheduled
Payments"), (iii) permit reinvestment of proceeds of the defeasance
collateral only in Permitted Investments (as defined in the [S&P
Criteria]), (iv) permit release of surplus defeasance collateral and
earnings on reinvestment from the pledged securities account only after
the Mortgage Loan has been paid in full, if any such release is
permitted, (v) prohibit transfers by the Defeasance Obligor of the
defeasance collateral and subordinate liens against the defeasance
collateral, and (vi) provide for payment from sources other than the
defeasance collateral or other assets of the Defeasance Obligor of all
fees and expenses of the securities intermediary for administering the
defeasance and the securities account and all fees and expenses of
maintaining the existence of the Defeasance Obligor.
(viii) The Master Servicer received written confirmation from a
firm of independent certified public accountants, who were approved by
the Master Servicer in accordance with the Servicing Standard stating
that (i) revenues from the defeasance collateral (without taking into
account any earnings on reinvestment of such revenues) will be sufficient
to timely pay each of the Scheduled Payments after the defeasance
including the payment in full of the Mortgage Loan (or the allocated
portion thereof in connection with a partial defeasance) on its Maturity
Date (or, in the case of an ARD Loan, on its Anticipated Repayment Date),
(ii) the revenues received in any month from the defeasance collateral
will be applied to make Scheduled Payments within four (4) months after
the date of receipt, and (iii) interest income from the defeasance
collateral to the Defeasance Obligor in any calendar or fiscal year will
not exceed such Defeasance Obligor's interest expense for the Mortgage
Loan (or the allocated portion thereof in a partial defeasance) for such
year.
(ix) The Mortgage Loan is not among the ten (10) largest loans in
the pool. The entire principal balance of the Mortgage Loan as of the
date of defeasance was less than both $[______] and five percent of pool
balance, which is less than [__]% of the aggregate Certificate Balance of
the Certificates as of the date of the most recent Trustee's Distribution
Date Statement received by us (the "Current Report").
(x) [The Master Servicer has received opinions of counsel stating
that the Trustee possesses a valid, perfected first priority security
interest in the defeasance collateral and that the documents executed in
connection with the defeasance are enforceable in accordance with their
respective terms.]
(xi) The defeasance described herein, together with all prior and
simultaneous defeasances of Mortgage Loans, brings the total of all fully
and partially defeased Mortgage Loans to $__________________, which is
_____% of the aggregate Certificate Balance of the Certificates as of the
date of the Current Report.
(c) Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the Defeasance Obligor,
and opinions of counsel and independent accountants executed and delivered in
connection with the defeasance.
(d) Certify that the individual under whose hand the Master
Servicer has caused this Notice and Certification to be executed did constitute
a Servicing Officer as of the date of the defeasance described above.
(e) Agree to provide copies of all items listed in Exhibit B to
you upon request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice
and Certification to be executed as of the date captioned above.
[CAPMARK FINANCE INC.]
[XXXXX FARGO BANK, N.A.]
By: _____________________________
Name:
Title:
EXHIBIT S
INFORMATION REQUEST FROM CERTIFICATEHOLDER, BENEFICIAL OWNER OR
PROSPECTIVE PURCHASER
[Date]
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, JPMorgan 2007 CIBC19
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-CIBC19,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC19
-----------------------------------------------------------------
Pursuant to the Pooling and Servicing Agreement, dated as of June
14, 2007 (the "Pooling and Servicing Agreement"), by and among X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., as Depositor, Capmark Finance Inc. and
Xxxxx Fargo Bank, N.A., as Master Servicers, LNR Partners, Inc., as Special
Servicer, and LaSalle Bank National Association, as Trustee and as Paying Agent
with respect to X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-CIBC19, Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC19
(the "Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a [Holder] [Certificate Owner] [prospective
purchaser] of $___________ aggregate [Certificate Balance/Notional Amount] of
the Class ____ Certificates.
2. The undersigned is requesting access to the information (the
"Information") on the Paying Agent's Internet Website pursuant to Section 4.02
of the Pooling Servicing Agreement.
3. In consideration of the Paying Agent's disclosure to the
undersigned of the Information, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in evaluating
the Information), and such Information will not, without the prior written
consent of the Trustee, be disclosed by the undersigned or by its officers,
directors, partners employees, agents or representatives in any manner
whatsoever, in whole or in part; provided that the undersigned may provide all
or any part of the Information to any other person or entity that is
contemplating the purchase of any Certificate, but only if such person or entity
confirms in writing such prospective ownership interest and agrees to keep it
confidential; and provided that the undersigned may provide all or any part of
the Information to its auditors, legal counsel and regulators.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require registration of any Certificate pursuant to
Section 5 of the Securities Act or under any other applicable law.
Capitalized terms not defined herein shall have the same meaning
ascribed to them in the Pooling Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[HOLDER] [CERTIFICATE OWNER]
[PROSPECTIVE PURCHASER]
By: __________________________________
Name:
Title:
Telephone No.:
EXHIBIT T
TRUSTEE CERTIFICATION/EXCEPTION REPORT
[DATE]
To the Persons Listed on the attached Schedule A
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-CIBC19,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC19
-----------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the Pooling and Servicing
Agreement, dated as of June 14, 2007 (the "Pooling and Servicing Agreement"), by
and among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor,
Capmark Finance Inc. and Xxxxx Fargo Bank, N.A., as Master Servicers, LNR
Partners, Inc., as Special Servicer, and LaSalle Bank National Association, as
Trustee and as Paying Agent, the undersigned, as Trustee, hereby certifies that,
except as noted on the attached Trustee Exception Report, as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in
full or for which a Liquidation Event has occurred) the Trustee has, subject to
Section 2.02(e) of the Pooling and Servicing Agreement, reviewed the documents
delivered to it pursuant to Section 2.01 of the Pooling and Servicing Agreement
and has determined that (i) all documents specified in clauses (i) through (v),
(ix) through (xii) and (xvi) (or, with respect to clause (xvi), a copy of such
letter of credit and the required officer's certificate), if any, of the
definition of "Mortgage File," as applicable, are in its possession, (ii) the
foregoing documents delivered or caused to be delivered by the Mortgage Loan
Sellers have been reviewed by it or by a Custodian on its behalf and appear
regular on their face and appear to be executed and to relate to such Mortgage
Loan, and (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (iv), (vi) and (viii)(c) in the definition of
"Mortgage Loan Schedule" is correct.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:_____________________________
Name:
Title:
TRUSTEE EXCEPTION REPORT
None.
SCHEDULE A
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Capmark Finance Inc.
000 Xxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxx Fargo Bank, N.A.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
LNR Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10041
JPMorgan Chase Bank, National Association
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT U-1
[FORM OF NOTICE RELATING TO THE 000 XXXXXXXXX XXXXXX MORTGAGE LOAN]
[Date]
VIA FACSIMILE
-------------
Attention: [__________________]
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2007-CIBC19,
Commercial Mortgage Pass-Through Certificates, Series
2007-CIBC19
-----------------------------------------------------
Dear [_____________]:
Midland Loan Services, Inc. is the master servicer (the "599
Lexington Avenue Master Servicer") for the 000 Xxxxxxxxx Xxxxxx Whole Loan, as
such term is defined under the Pooling and Servicing Agreement, dated June 14,
2007 (the "2007-CIBC19 Pooling Agreement") by and among X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., as depositor, Capmark Financial Inc. (the
"599 Lexington Avenue Mortgage Loan Master Servicer") and Xxxxx Fargo Bank,
N.A., as master servicers, LNR Partners, Inc., as special servicer, and LaSalle
Bank National Association, as trustee (in such capacity, the "Trustee") and as
paying agent. The Trustee hereby directs the 000 Xxxxxxxxx Xxxxxx Master
Servicer, as follows:
The 000 Xxxxxxxxx Xxxxxx Master Servicer shall remit to the 000
Xxxxxxxxx Xxxxxx Mortgage Loan Master Servicer all amounts payable to, and
forward, deliver or otherwise make available, as the case may be, to the 000
Xxxxxxxxx Xxxxxx Mortgage Loan Master Servicer all reports, statements,
documents, communications, and other information that are to be forwarded,
delivered or otherwise made available to, the holder of the 000 Xxxxxxxxx Xxxxxx
Mortgage Loan (as such term is defined in the 2007-CIBC19 Pooling Agreement)
under the 000 Xxxxxxxxx Xxxxxx Intercreditor Agreement (as defined in the
2007-CIBC19 Pooling Agreement).
Thank you for your attention to this matter.
LASALLE BANK NATIONAL
ASSOCIATION, as Trustee for
the Holders of the X.X.
Xxxxxx Chase Commercial
Mortgage Securities Trust
2007-CIBC19, Commercial
Mortgage Pass-Through
Certificates, Series
2007-CIBC19.
Date: _________________________
LASALLE BANK NATIONAL ASSOCIATION
By: ___________________________
[Name]
[Title]
EXHIBIT U-2
[FORM OF NOTICE RELATING TO AMERICOLD PORTFOLIO MORTGAGE LOAN]
[Date]
VIA FACSIMILE
-------------
Attention: [__________________]
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2007-CIBC19,
Commercial Mortgage Pass-Through Certificates, Series
2007-CIBC19
-----------------------------------------------------
Dear [_____________]:
Capmark Finance Inc. is the master servicer (the "AmeriCold
Portfolio Master Servicer") for the AmeriCold Portfolio Whole Loan, as such term
is defined under the Pooling and Servicing Agreement, dated June 14, 2007 (the
"2007-CIBC19 Pooling Agreement") by and among X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., as depositor, Capmark Financial Inc. (the "AmeriCold
Portfolio Mortgage Loan Master Servicer") and Xxxxx Fargo Bank, N.A., as master
servicers, LNR Partners, Inc., as special servicer, and LaSalle Bank National
Association, as trustee (in such capacity, the "Trustee") and as paying agent.
The Trustee hereby directs the AmeriCold Portfolio Master Servicer, as follows:
The AmeriCold Portfolio Master Servicer shall remit to the AmeriCold
Portfolio Mortgage Loan Master Servicer all amounts payable to, and forward,
deliver or otherwise make available, as the case may be, to the AmeriCold
Portfolio Mortgage Loan Master Servicer all reports, statements, documents,
communications, and other information that are to be forwarded, delivered or
otherwise made available to, the holder of the AmeriCold Portfolio Mortgage Loan
(as such term is defined in the 2007-CIBC19 Pooling Agreement) under the
AmeriCold Portfolio Intercreditor Agreement (as defined in the 2007-CIBC19
Pooling Agreement).
Thank you for your attention to this matter.
LASALLE BANK NATIONAL
ASSOCIATION, as Trustee for
the Holders of the X.X.
Xxxxxx Chase Commercial
Mortgage Securities Trust
2007-CIBC19, Commercial
Mortgage Pass-Through
Certificates, Series
2007-CIBC19.
Date: _________________________
LASALLE BANK NATIONAL ASSOCIATION
By: ___________________________
[Name]
[Title]
EXHIBIT V
FORM CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
CERTIFICATION
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-CIBC19
Commercial Mortgage Pass-Through Certificates
Series 2007-CIBC19 (the "Trust")
I, [identifying the certifying individual], the President and Chief
Executive Officer of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., the
depositor into the above-referenced Trust, certify that:
1. I have reviewed this annual report on Form 10-K, and all reports on Form
10-D required to be filed in respect of period covered by this annual
report on Form 10-K, of the Trust (the "Exchange Act Periodic Reports");
2. Based on my knowledge, the Exchange Act Periodic Reports, taken as a
whole, do not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading
with respect to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D for the period covered
by this report is included in the Exchange Act Periodic Reports;
4. Based on my knowledge and the servicer compliance statements required in
this report under Item 1123 of Regulation AB, and except as disclosed in
the Exchange Act Periodic Reports, the master servicer and the special
servicer have fulfilled their obligations under the pooling and servicing
agreement in all material respects; and
5. All of the reports on assessment of compliance with servicing criteria
and their related attestation reports on assessment of compliance with
servicing criteria required to be included in this report in accordance
with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and
15d-18 have been included as an exhibit to this report, except as
otherwise disclosed in this report. Any material instances of
noncompliance described in such reports have been disclosed in this
report on Form 10-K.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: Capmark Finance Inc.,
Xxxxx Fargo Bank, N.A., LNR Partners, Inc., and. LaSalle Bank National
Association.
Date: _________________________
______________________________________
President and Chief Executive Officer
X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp.
EXHIBIT W-1
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY PAYING AGENT
CERTIFICATION
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-CIBC19
Commercial Mortgage Pass-Through Certificates
Series 2007-CIBC19 (the "Trust")
I, [identifying the certifying individual], on behalf of LaSalle
Bank National Association, as trustee and paying agent, 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__,
and all reports on Form 10-D required to be filed in respect of periods
covered by that annual report on Form 10-K, of the Trust (the "Exchange
Act Periodic Reports");
2. Based on my knowledge, the distribution information in the Exchange Act
Periodic Reports, taken as a whole, does not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by that
report on Form 10-K;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided to the paying agent by the master
servicer and the special servicer under the pooling and servicing
agreement for inclusion in the Exchange Act Periodic Reports is included
in such reports;
4. I am responsible for reviewing the activities performed by the Trustee and
based on my knowledge and the compliance reviews conducted in preparing
the Trustee compliance statements required for inclusion on Form 10-K
pursuant to Item 1123 of Regulation AB, and except as disclosed on any
Form 10-D or 10-K, the Trustee has fulfilled its obligations in all
material respects under the Pooling and Servicing Agreement; and
5. The report on assessment of compliance with servicing criteria and the
related attestation report on assessment of compliance with servicing
criteria required to be delivered by the Paying Agent in accordance
with Section 11.10 and Section 11.11 of the pooling and servicing
agreement discloses, with respect to the Trustee, all material
instances of noncompliance with the Relevant Servicing Criteria and
such assessment of compliance with servicing criteria is fairly stated
in all material respects.
Date:__________________________________
LASALLE BANK NATIONAL ASSOCIATION
By:____________________________________
[Name]
[Title]
EXHIBIT W-2
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY MASTER SERVICER
CERTIFICATION
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-CIBC19
Commercial Mortgage Pass-Through Certificates
Series 2007-CIBC19 (the "Certificates")
I, [identify the certifying individual], on behalf of [Capmark
Finance Inc.][Xxxxx Fargo Bank, N.A.], certify to X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp. and their officers, directors and affiliates, and with
the knowledge and intent that they will rely upon this certification in
delivering the Certification required by the pooling and servicing agreement
relating to the Certificates (capitalized terms used herein without definition
shall have the meanings assigned to such terms in the pooling and servicing
agreement), that:
1. I have reviewed the servicing reports relating to the trust fund delivered
by the Master Servicer to the Trustee covering the fiscal year 20__;
2. Based on my knowledge, the servicing information in these reports, taken
as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not
misleading with respect to the period covered by these servicing reports;
3. Based on my knowledge, the servicing information required to be provided
to the Trustee by the Master Servicer under the pooling and servicing
agreement for inclusion in the reports to be filed by the Trustee is
included in the servicing reports delivered by the Master Servicer to the
Trustee;
4. I am responsible for reviewing the activities performed by the Master
Servicer under the pooling and servicing agreement and based upon my
knowledge and the compliance review conducted in preparing the servicer
compliance statement required under Section 11.09 of the pooling and
servicing agreement with respect to the Master Servicer, and except as
disclosed in such compliance statement delivered by the Master Servicer
under Section 11.09 of the pooling and servicing agreement, the Master
Servicer has fulfilled its obligations under the pooling and servicing
agreement in all material respects in the year to which such review
applies; and
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:__________________________________
[CAPMARK FINANCE INC.][XXXXX FARGO
BANK, N.A.]
By: __________________________________
[Name]
[Title]
EXHIBIT W-3
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY SPECIAL SERVICER
CERTIFICATION
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-CIBC19
Commercial Mortgage Pass-Through Certificates
Series 2007-CIBC19 (the "Certificates")
I, [identify the certifying individual], on behalf of [LNR Partners,
Inc.], certify to X.X. Xxxxxx Chase Commercial Mortgage Securities Corp. and
their officers, directors and affiliates, and with the knowledge and intent that
they will rely upon this certification in delivering the Certification required
by the pooling and servicing agreement relating to the Certificates (capitalized
terms used herein without definition shall have the meanings assigned to such
terms in the pooling and servicing agreement), that:
1. I have reviewed the servicing reports relating to the trust fund delivered
by the Special Servicer to the Master Servicers covering the fiscal year
20_ _;
2. Based on my knowledge, the servicing information in the servicing reports
taken as a whole, does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not
misleading with respect to the period covered by these servicing reports;
3. Based on my knowledge, the servicing information required to be provided
to the Master Servicer by the Special Servicer under the pooling and
servicing agreement for inclusion in the reports to be filed by the
Trustee is included in the servicing reports delivered by the Special
Servicer to the Master Servicer;
4. I am responsible for reviewing the activities performed by the Special
Servicer under the pooling and servicing agreement and based upon my
knowledge and the compliance review conducted in preparing the servicer
compliance statement required under Section 11.09 of the pooling and
servicing agreement with respect to the Special Servicer, and except as
disclosed in such compliance statement delivered by the Special
Servicer under Section 11.09 of the pooling and servicing agreement,
the Special Servicer has fulfilled its obligations under the pooling
and servicing agreement in all material respects in the year to which
such review applies; and
5. The report on assessment of compliance with servicing criteria and the
related attestation report on assessment of compliance with servicing
criteria required to be delivered by the Special Servicer in accordance
with Section 11.10 and Section 11.11 of the pooling and servicing
agreement discloses, with respect to the Special Servicer, all material
instances of noncompliance with the Relevant Servicing Criteria and
such assessment of compliance with servicing criteria is fairly stated
in all material respects.
Date:__________________________________
[LNR PARTNERS, INC.]
By:____________________________________
[Name]
[Title]
EXHIBIT X
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the referenced party shall
address, at a minimum, the criteria identified below as "Relevant Servicing
Criteria":
RELEVANT SERVICING
SERVICING CRITERIA CRITERIA
Reference Criteria
General Servicing Considerations
1122(d)(1)(i) Policies and procedures are instituted to monitor any Paying Agent
performance or other triggers and events of default in Master Servicer
accordance with the transaction agreements. Special Servicer
1122(d)(1)(ii) If any material servicing activities are outsourced to third Paying Agent
parties, policies and procedures are instituted to monitor the Master Servicer
third party's performance and compliance with such servicing Special Servicer
activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a N/A
back-up servicer for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect Master Servicer
on the party participating in the servicing function Special Servicer
throughout the reporting period in the amount of coverage Custodian
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 appropriate Paying Agent
custodial bank accounts and related bank clearing accounts no Master Servicer
more than two business days following receipt, or such other Special Servicer
number of days specified in the transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor Paying Agent
or to an investor are made only by authorized personnel. Master Servicer
Special Servicer
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash Master Servicer
flows or distributions, and any interest or other fees charged Special Servicer
for such advances, are made, reviewed and approved as Trustee
specified in the transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve Paying Agent
accounts or accounts established as a form of Master Servicer
overcollateralization, are separately maintained (e.g., with Special Servicer
respect to commingling of cash) as set forth in the
transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured Paying Agent
depository institution as set forth in the transaction Master Servicer
agreements. For purposes of this criterion, "federally insured Special Servicer
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.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized Paying Agent
access. Master Servicer
Special Servicer
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all Paying Agent
asset-backed securities related bank accounts, including Master Servicer
custodial accounts and related bank clearing accounts. These Special Servicer
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 the Paying Agent
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements.
Specifically, such reports (A) are prepared in accordance with
timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance
with the terms specified in the transaction agreements; (C)
are filed with the Commission as required by its rules and
regulations; and (D) agree with investors' or the trustee's
records as to the total unpaid principal balance and number of
mortgage loans serviced by the Reporting Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in Paying Agent
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 two Paying Agent
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 agree Paying Agent
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 as Custodian
required by the transaction agreements or related mortgage Master Servicer
loan documents. Special Servicer
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as Custodian
required by the transaction agreements
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are Custodian
made, reviewed and approved in accordance with any conditions Trustee
or requirements in the transaction agreements. Master Servicer
Special Servicer
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in Master Servicer
accordance with the related mortgage loan documents are posted Special Servicer
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 mortgage loans Master Servicer
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 obligor's Master Servicer
mortgage loans (e.g., loan modifications or re-agings) are Special Servicer
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 plans, Special Servicer
modifications and deeds in lieu of foreclosure, foreclosures
and repossessions, as applicable) are initiated, conducted and
concluded in accordance with the timeframes or other
requirements established by the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained during Master Servicer
the period a mortgage loan is delinquent in accordance with Special Servicer
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 mortgage Master Servicer
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 as Master Servicer
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 payment to Master Servicer
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 within Master Servicer
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 are Master Servicer
recognized and recorded in accordance with the transaction
agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Item N/A
1114(a)(1) through (3) or Item 1115 of Regulation AB, is
maintained as set forth in the transaction agreements.
[NAME OF REPORTING SERVICER]
Date:________________________________
By:__________________________________
Name:________________________________
Title:_______________________________
EXHIBIT Y
ADDITIONAL FORM 10-D DISCLOSURE
Item on Form 10-D Party Responsible
Item 1: Distribution and Pool 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), (ii) as to
per Item 1117 of Regulation AB (to the extent litigation to which they respectively have
material to Certificateholders) knowledge, the Trustee, the Master Servicer and
the Special Servicer as to the issuing entity (in
the case of the Master Servicer and the Special
Servicer, to be reported by the party controlling
such litigation pursuant to Section 3.34 of the
Pooling and Servicing Agreement), (iii) the
Depositor as to the sponsors, 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
Information
Item 8: Other Information Any party responsible for disclosure items on Form
8-K
Item 9: Exhibits Trustee
Depositor
EXHIBIT Z
ADDITIONAL FORM 10-K DISCLOSURE
Item on Form 10-K Party Responsible
Item 1B: Unresolved Staff Comments Depositor
Item 9B: Other Information Any party responsible for disclosure items on Form
8-K
Item 15: Exhibits, Financial Statement Schedules Trustee
Depositor
Additional Item: (i) All parties to the Pooling and Servicing
Agreement (as to themselves), (ii) as to
Disclosure per Item 1117 of Regulation AB (to the litigation to which they respectively have
extent material to Certificateholders) knowledge, the Trustee, the Master Servicer and
the Special Servicer as to the issuing entity (in
the case of the Master Servicer and the Special
Servicer, to be reported by the party controlling
such litigation pursuant to Section 3.34 of the
Pooling and Servicing Agreement), (iii) the
Depositor as to the sponsor, any 1110(b)
originator and any 1100(d)(1) party
Additional Item: (i) All parties to the Pooling and Servicing
Disclosure per Item 1119 of Regulation AB Agreement as to themselves, (ii) the Depositor as
to the sponsor, originator, significant obligor,
enhancement or support provider
Additional Item: Depositor
Disclosure per Item 1112(b) of Regulation AB
Additional Item: Depositor
Disclosure per Items 1114(b)(2) and 1115(b) of
Regulation AB
EXHIBIT AA
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 entity is
Agreement a party to or entered into on behalf of the Trust
Fund)
Item 1.02- Termination of a Material Definitive All parties (only as to agreements such entity is
Agreement 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 or Depositor
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 Incorporation Depositor
or Bylaws; Change of Fiscal Year
Item 6.01- ABS Informational and Computational Depositor
Material
Item 6.02- Change of Master Servicer, Special Master Servicer
Servicer or Trustee Special Servicer
Trustee
Depositor
Item 6.03- Change in Credit Enhancement or External Depositor
Support Trustee
Item 6.04- Failure to Make a Required Distribution Trustee
Item 6.05- Securities Act Updating Disclosure Depositor
Item 7.01- Regulation FD Disclosure Depositor
Item 8.01 Depositor
Item 9.01 Depositor
EXHIBIT BB
ADDITIONAL DISCLOSURE NOTIFICATION
**SEND VIA FAX TO (000) 000-0000 AND VIA EMAIL TO xxxxx@xxxxxxx.xxx AND VIA
OVERNIGHT MAIL TO THE ADDRESS IMMEDIATELY BELOW**
LaSalle Bank National Association, as Trustee
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services, JPMorgan 2007 CIBC19--SEC
REPORT PROCESSING
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: NA CMBS - Capital Markets
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 7, 2007, among Capmark Finance Inc. and Xxxxx Fargo
Bank, N.A., as master servicers, LNR Partners, Inc., as special servicer and
LaSalle Bank National Association, as trustee and as paying agent, the
undersigned, as [__________], hereby notifies you that certain events have come
to our attention that [will] [may] need to be disclosed on Form
[10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to
[_______________________], phone number: [_________]; email address:
[___________________].
[NAME OF PARTY],
as [role]
By:______________________________________
Name:
Title:
EXHIBIT CC
SERVICING AND SUBSERVICING AGREEMENTS
The Mortgage Loans shall be serviced by the Master Servicers. Certain of
the Mortgage Loans are subject to subservicing agreements as set forth below.
Property Name Subservicer Name
Crowne Plaza Metro Chicago River North
Doubletree Guest Suites Xxxxxxxx Xxxxxxxx Xxxxxx, X.X.
Embassy Suites - PHX Newmark
Hampton Inn Coconut Grove Capmark Finance Inc.
River City Plaza Shopping Center Capmark Finance Inc.
Water's Edge Apartments LJ Melody & Company
0000 Xxxxxx Xxxx Xxxx Xxxx X. Xxxx & Co.
Neways Office Building Xxxxxxxx Xxxxxxxx Fowler, L.P.
Country Inn & Best Western Laureate Capital
Corinthian Colleges Holliday Fenoglio Fowler, L.P.
Coral Hills Shopping Center NorthMarq Capital
Village Greens of Annapolis NorthMarq Capital
Veteran's Parkway Capstone Realty Advisors
Holiday Inn North Haven NorthMarq Capital
Hampton Inn Juno Beach Holliday Fenoglio Fowler, L.P.
Dalton Avenue Plaza Capmark Finance Inc.
Holiday Inn Express - Jackson, MS Laureate Capital
Sterling Plaza Capmark Finance Inc.
University Park Apartments Purdue Capmark Finance Inc.
Hampton Inn - Myrtle Beach Laureate Capital
Crown Point Office NorthMarq Capital
Gaffney Retail Center - SC NorthMarq Capital
2150/2250 Butterfield Wells Fargo RE Capital Markets
Carriage Court Apartments BlueMark Capital
Redners Market - Reading, PA Capmark Finance Inc.
Shoppes at Higley Village Newmark
Hampton Inn - Gainesville Laureate Capital
Trinidad Plaza LJ Melody & Company
O'Connor Crossing Capmark Finance Inc.
Hampton Inn Dry Ridge BlueMark Capital
Oakbrook Station Capmark Finance Inc.
EXHIBIT DD
SERVICING FUNCTION PARTICIPANTS
With respect to Capmark Finance, Inc., a master servicer, none.
With respect to the Wells Fargo, N.A., a master servicer, none, except for
entities that such master servicer has determined are not considered a
"servicer" as defined in Item 1101(j) of Regulation AB and for which such master
servicer will take responsibility for assessing compliance with the servicing
criteria applicable to such entity as permitted by Interpretation 17.06 of the
SEC Division of Corporation Finance Manual of Publicly Available Telephone
Interpretations.
With respect to LNR Partners, Inc., special servicer, none.
With respect to LaSalle Bank National Association, trustee and paying agent,
none.
EXHIBIT EE
FORM OF ANNUAL COMPLIANCE STATEMENT
CERTIFICATION
J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-CIBC19
Commercial Mortgage Pass-Through Certificates
Series 2007-CIBC19 (the "Trust")
I, [identifying the certifying individual], on behalf of [Capmark
Finance Inc., as a master servicer][Wells Fargo Bank, N.A., as a master
servicer][LNR Partners, Inc., as special servicer][LaSalle Bank National
Association, as trustee and paying agent] (the "Certifying Servicer"), certify
to J.P. Morgan Chase Commercial Mortgage Securities Corp. and its officers,
directors and affiliates, and with the knowledge and intent that they will rely
upon this certification, that:
1. I have reviewed the Certifying Servicer's activities during the preceding
calendar year or portion thereof and the Certifying Servicer's performance
under the Pooling and Servicing Agreement; and
2. To the best of my knowledge, based on my review, the Certifying Servicer
has fulfilled all of its obligations under the Pooling and Servicing
Agreement in all material respects throughout such year or portion
thereof. [To my knowledge, the Certifying Servicer has failed to fulfill
the following obligations under the Pooling and Servicing Agreement:
[SPECIFY EACH SUCH FAILURE AND THE NATURE AND STATUS THEREOF]].
Date:__________________________________
[CAPMARK FINANCE INC.][WELLS FARGO
BANK, N.A.][LNR PARTNERS,
INC.][LASALLE BANK NATIONAL
ASSOCIATION]
By: __________________________________
[Name]
[Title]
EXHIBIT FF
FORM OF REPORT ON ASSESSMENT OF COMPLIANCE WITH SERVICING CRITERIA
1. [Name of Reporting Servicer] (the "Reporting Servicer") is responsible
for assessing compliance with the servicing criteria applicable to it
under paragraph (d) of Item 1122 of Regulation AB, as of and for the
12-month period ending [December 31, 2007] (the "Reporting Period"), as
set forth in Exhibit X to the Pooling and Servicing Agreement. The
transactions covered by this report include asset-backed securities
transactions [for which the Reporting Servicer acted as [a master
servicer, special servicer, trustee, paying agent, servicer]] involving
commercial mortgage loans [other than __________________(1)] (the
"Platform");
2. [The Reporting Servicer has engaged certain vendors (the "Vendors") to
perform specific, limited or scripted activities, and the Reporting
Servicer elects to take responsibility for assessing compliance with the
servicing criteria or portion of the servicing criteria applicable to such
Vendors' activities as set forth on Schedule A;]
3. The Reporting Servicer used the criteria set forth in paragraph (d) of
Item 1122 of Regulation AB to assess the compliance with the applicable
servicing criteria;
4. The Reporting Servicer has complied, in all material respects, with the
applicable servicing criteria as of [December 31, 2007] and for the
Reporting Period with respect to the Platform taken as a whole[, except as
described on Schedule B hereto];
5. [The Reporting Servicer has not identified and is not aware of any
material instance of noncompliance by the Vendors with the applicable
servicing criteria as of [December 31, 2007] and for the Reporting Period
with respect to the Platform taken as a whole[, except as described on
Schedule B hereto]];
6. [The Reporting Servicer has not identified any material deficiency in its
policies and procedures to monitor the compliance by the Vendors with the
applicable servicing criteria as of [December 31, 2007] and for the
Reporting Period with respect to the Platform taken as a whole[, except as
described on Schedule B hereto]; and]
7. [_____________], a registered public accounting firm, has issued an
attestation report on the Reporting Servicer's assessment of compliance
with the applicable servicing criteria for the Reporting Period.
[Date of Certification]
----------------------------
(1) Describe any permissible exclusions, including those permitted under
telephone interpretation 17.04 (i.e. transactions registered prior to compliance
with Regulation AB, transactions involving an offer and sale of asset-backed
securities that were not required to be issued), if applicable.
[NAME OF REPORTING SERVICER]
By:______________________________________
Name:
Title:
SCHEDULE A
LIST OF VENDORS AND APPLICABLE SERVICING CRITERIA
SCHEDULE B*
8. [Describe material instances of noncompliance by the Reporting Servicer.]
9. [Describe any remediation efforts (optional).]
10. [Describe material instances of noncompliance by Vendors identified by the
Reporting Servicer.]
11. [Describe any remediation efforts (optional).]
12. [Describe material deficiencies in the Reporting Servicer's policies and
procedures to monitor Vendors.]
13. [Describe any remediation efforts (optional).]
*Accountants' attestation will cover only paragraphs 1, 3 and 4 or,
alternatively, will exclude paragraphs 2 and 5.
SCHEDULE 1
Mortgage Loans Containing Additional Debt
Mortgage Loan No. Property Name
--------------------------- --------------------------------------------
1 599 Lexington Avenue
4 Green Hills Corporate Center
16 AmeriCold Portfolio
23 ABB Automation, Inc.
87 Cumberland Tech Center
96 Holiday Inn Express-Temecula
123 Veteran's Parkway
SCHEDULE 2
Mortgage Loans Which Initially Pay Interest Only
Mortgage Loan No. Property Name
------------------------- ---------------------------------------------------
1 599 Lexington Avenue
2 River City Marketplace
3 Sabre Headquarters
4 Green Hills Corporate Center
5 Cabot Industrial Portfolio V
7 St. Julien Hotel & Spa
9 Doubletree Guest Suites
10 Temple U Health System Headquarters
11 Marriott - Memphis
12 Harrisburg Portfolio
13 Bronx Apartment Portfolio
14 Peartree Square
15 Lincoln Place Shopping Center
16 AmeriCold Portfolio
17 Orchard Place Shopping Center
19 LG Portfolio
20 The Shops at Boardman Park
21 Crossroads Center
22 Royal Oaks Plaza
23 ABB Automation, Inc.
24 Zidan-Springhill and Walnut Creek
25 Plaza de Hacienda
26 Freehold Mall
28 GE - Cleveland, TN
29 Embassy Suites - PHX
30 Park Terrace
32 China Town Center
33 Campus Hill Apartments Portfolio
34 Abbott Square
35 Kierland Corporate Center Phase I
37 Del Prado Anaheim
38 Hampton Inn Coconut Grove
39 Airport Industrial Center
40 Las Palmas Shopping Center
41 9400 Shea Boulevard
44 Zidan/Van Rooy Apartment Portfolio
46 Summit Square Center
48 Bluff at Vista Ridge
49 5th & G Plaza
50 The Greentree Place Apartments
51 River City Plaza Shopping Center
52 Lenox Plaza Shopping Center
53 San Mar Plaza Shopping Center
54 59 Temple Place
55 Glen Arbor Apartments
56 Prien Lake Plaza
57 Value City
58 Towne Square Shopping Center
59 Invesco Portfolio
60 Shady Oaks
61 Chowder Bay Apartments
62 Beverly Hills Ice House
63 Water's Edge Apartments
64 Park Place Apartments
65 Moon Valley
66 221 Canal Street
67 Haymarket Square
69 Eastgate Plaza
70 Osprey Portfolio - Michigan
71 535 Broadway
72 Foothills Vista Tech Center
73 Bridgestone Building
74 Town & Country
77 Carlton Hotel - South Beach
78 466 Broome Street
80 Millennium Plaza
81 DL Storage
82 4600 Powder Mill Road
83 Bed Bath & Beyond Plaza
84 The Fremont Building
85 AT&T Center - Dallas, TX
86 Farmington Estates
87 Cumberland Tech Center
89 Pleasant Valley Plaza
90 York
91 Filene' s Basement
92 River Ranch Apartments
93 Greenbriar Hills Apartments
96 Holiday Inn Express - Temecula
98 106th South Business Park
99 Corinthian Colleges
100 Harper Collins
101 Coral Hills Shopping Center
102 Lake Park Outlets
104 Outpost - Lake Placid, NY
105 First Financial Centre
106 Beaver Brook Village
108 Willow Pointe Apartments
109 Village Greens of Annapolis
110 Cheyenne Market Place
112 Empire Distributors of North Carolina
113 Woodbury Apartments
114 Pleasant Valley
115 Creekside Four Office Building
116 Meridian Center I
117 AT&T Beaumont Call Centre
118 Pure Resources Office Building
119 Mid America V
120 Sheraton Four Points & Ocean Park
121 Trexlertown Marketplace
122 Adams Four
123 Veteran's Parkway
124 Midway Estates
125 Edgebrook
126 Kingsway Estates
128 Brookmeadow
130 Haggerty Corridor Office
131 Klein Crossing Shopping Center
132 Plaza North Shopping Center
133 Frances Way Villas Apartments
134 Oceanside
135 Maple Grove Estates
136 New Town Properties
137 Hampton Inn Juno Beach
138 Mesa Verde Apartments
143 9039 Sunset Boulevard
144 Fairfield Inn LN
145 Shoreline Terrace
146 Brookwood MHC
149 Woodfield
150 Dalton Avenue Plaza
151 Cathedral Court Apartments
152 Eustis Shoppes - Eustis, FL
153 Telephone Road
154 Pleasant Ridge
156 Riverside Office Plaza
160 Sterling Plaza
162 University Park Apartments Purdue
163 Valley Oaks
165 Kaplan Higher Education Building
166 Crown Point Office
170 Raia Self Storage - Montville LLC
173 Garden Grove Retail
174 Wingate Inn
175 South Philly Plaza
178 1818 Pacific Street
179 Hollywood Estates
180 Colonial Estates
181 2233 Nostrand Avenue
182 Circuit City
183 Carriage Court Apartments
184 Redners Market - Reading, PA
185 Fishers Crossing
187 North Creek MHC
191 Shoppes at Higley Village
192 Met Life Building
193 Shoppes at Smithbridge and Longwood Office Building
194 Sunny Acres Estates
195 Timber Ridge Apartments
196 20 Century Hill Drive
197 Holiday Inn - Weirton
198 The Examiner Building
199 Broadview Office Building
200 Worldwide Wholesale Floor Covering
202 Brighton Court Apartments
203 5050 Veterans Memorial
205 Beyerwood Apartments
206 Countryside Portfolio
207 Windrush Apartments
210 109 Highland Avenue
211 9 Park Center Court
214 Layton Market Center
218 Cole Gardens Apartments
221 Belvedere Parking Garage
222 Petco
223 Regency Apartments
225 Redwood
226 3145 Rochambeau Avenue
227 Trinidad Plaza
228 O'Connor Crossing
229 Casa di Citta Apartments
230 Pathmark Supermarket
231 Riviera Heights MHC
235 Office Max - Mesa, AZ
236 Country Club Terrace MHC
237 2435-2445 West Kettleman Lane
238 La Carre Apartments
240 Lakeside Place
241 Oakbrook Station
SCHEDULE 3
Class A-SB Planned Principal Balance Schedule
Date Balance
----------------------------------- --------------------
July 12, 2007.................. $117,589,000.00
August 12, 2007................ $117,589,000.00
September 12, 2007............. $117,589,000.00
October 12, 2007............... $117,589,000.00
November 12, 2007.............. $117,589,000.00
December 12, 2007.............. $117,589,000.00
January 12, 2008............... $117,589,000.00
February 12, 2008.............. $117,589,000.00
March 12, 2008................. $117,589,000.00
April 12, 2008................. $117,589,000.00
May 12, 2008................... $117,589,000.00
June 12, 2008.................. $117,589,000.00
July 12, 2008.................. $117,589,000.00
August 12, 2008................ $117,589,000.00
September 12, 2008............. $117,589,000.00
October 12, 2008............... $117,589,000.00
November 12, 2008.............. $117,589,000.00
December 12, 2008.............. $117,589,000.00
January 12, 2009............... $117,589,000.00
February 12, 2009.............. $117,589,000.00
March 12, 2009................. $117,589,000.00
April 12, 2009................. $117,589,000.00
May 12, 2009................... $117,589,000.00
June 12, 2009.................. $117,589,000.00
July 12, 2009.................. $117,589,000.00
August 12, 2009................ $117,589,000.00
September 12, 2009............. $117,589,000.00
October 12, 2009............... $117,589,000.00
November 12, 2009.............. $117,589,000.00
December 12, 2009.............. $117,589,000.00
January 12, 2010............... $117,589,000.00
February 12, 2010.............. $117,589,000.00
March 12, 2010................. $117,589,000.00
April 12, 2010................. $117,589,000.00
May 12, 2010................... $117,589,000.00
June 12, 2010.................. $117,589,000.00
July 12, 2010.................. $117,589,000.00
August 12, 2010................ $117,589,000.00
September 12, 2010............. $117,589,000.00
October 12, 2010............... $117,589,000.00
November 12, 2010.............. $117,589,000.00
December 12, 2010.............. $117,589,000.00
January 12, 2011............... $117,589,000.00
February 12, 2011.............. $117,589,000.00
March 12, 2011................. $117,589,000.00
April 12, 2011................. $117,589,000.00
May 12, 2011................... $117,589,000.00
June 12, 2011.................. $117,589,000.00
July 12, 2011.................. $117,589,000.00
August 12, 2011................ $117,589,000.00
September 12, 2011............. $117,589,000.00
October 12, 2011............... $117,589,000.00
November 12, 2011.............. $117,589,000.00
December 12, 2011.............. $117,589,000.00
January 12, 2012............... $117,588,749.89
February 12, 2012.............. $116,321,044.18
March 12, 2012................. $114,721,348.81
April 12, 2012................. $113,398,539.39
May 12, 2012................... $111,585,495.68
June 12, 2012.................. $109,887,858.57
July 12, 2012.................. $107,936,929.89
August 12, 2012................ $106,220,125.09
September 12, 2012............. $104,494,691.00
October 12, 2012............... $102,517,528.59
November 12, 2012.............. $100,773,483.53
December 12, 2012.............. $ 98,778,219.82
January 12, 2013............... $ 97,015,378.94
February 12, 2013.............. $ 95,243,676.98
March 12, 2013................. $ 92,738,402.66
April 12, 2013................. $ 90,945,201.63
May 12, 2013................... $ 88,902,128.12
June 12, 2013.................. $ 87,074,751.68
July 12, 2013.................. $ 84,995,361.75
August 12, 2013................ $ 83,148,351.30
September 12, 2013............. $ 81,292,058.26
October 12, 2013............... $ 79,184,543.65
November 12, 2013.............. $ 77,308,329.45
December 12, 2013.............. $ 75,181,439.24
January 12, 2014............... $ 73,285,106.04
February 12, 2014.............. $ 71,379,241.97
March 12, 2014................. $ 68,742,943.58
April 12, 2014................. $ 66,809,501.83
May 12, 2014................... $ 64,625,932.68
June 12, 2014.................. $ 62,671,799.17
July 12, 2014.................. $ 60,468,104.93
August 12, 2014................ $ 58,493,074.17
September 12, 2014............. $ 56,508,116.66
October 12, 2014............... $ 54,274,442.57
November 12, 2014.............. $ 52,268,281.70
December 12, 2014.............. $ 50,013,984.93
January 12, 2015............... $ 47,986,410.13
February 12, 2015.............. $ 45,948,644.03
March 12, 2015................. $ 43,189,552.04
April 12, 2015................. $ 41,127,676.05
May 12, 2015................... $ 38,819,189.97
June 12, 2015.................. $ 36,735,346.73
July 12, 2015.................. $ 34,405,494.98
August 12, 2015................ $ 32,299,466.30
September 12, 2015............. $ 30,182,851.34
October 12, 2015............... $ 27,821,125.34
November 12, 2015.............. $ 25,681,999.45
December 12, 2015.............. $ 23,298,379.00
January 12, 2016............... $ 21,136,518.61
February 12, 2016.............. $ 18,963,790.81
March 12, 2016................. $ 16,314,836.41
April 12, 2016................. $ 14,117,871.34
May 12, 2016................... $ 11,677,995.66
June 12, 2016.................. $ 9,457,721.60
July 12, 2016.................. $ 6,995,175.24
August 12, 2016................ $ 4,751,360.67
September 12, 2016............. $ 2,496,266.02
October 12, 2016 and thereafter.. $ 0.00
SCHEDULE 4
Earnouts and Holdbacks
Mortgage Loan No. Property Name
----------------------------- -------------------------------------------
2 River City Marketplace
6 Crowne Plaza Metro Chicago
27 Hotel Indigo
31 Holopack International Corp.
34 Abbot Square
41 9400 Shea Boulevard
46 Summit Square Center
51 River City Plaza Shopping Center*
58 Towne Square Shopping Center
61 Chowder Bay Apartments
78 466 Broome Street
83 Bed Bath & Beyond Plaza
85 AT&T Center - Dallas, TX
92 River Ranch Apartments
102 Lake Park Outlets
105 First Financial Centre
106 Beaver Brook Village
110 Cheyenne Market Place
112 Empire Distributors of North Carolina
133 Frances Way Villas Apartments
134 Oceanside
148 20 Research Place
152 Eustis Shoppes - Eustis, FL
156 Riverside Office Plaza
162 University Park Apartments Purdue
167 Gaffney Retail Center - SC
186 Central Park East
* Applicable only respect to occupancy holdbacks.
