Exhibit 4.1
MORGAN STANLEY CAPITAL I INC.,
as Depositor,
WELLS FARGO BANK, N.A.,
as General Master Servicer,
LNR PARTNERS, INC.,
as General Special Servicer,
NCB, FSB,
as NCB Master Servicer,
NATIONAL CONSUMER COOPERATIVE BANK,
as Co-op Special Servicer
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee, Paying Agent and Certificate Registrar
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2007
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-IQ13
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1
Definitions....................................................
Section 1.2
Calculations Respecting Mortgage Loans.........................
Section 1.3
Calculations Respecting Accrued Interest.......................
Section 1.4
Interpretation.................................................
Section 1.5 ARD
Loans......................................................
Section 1.6 Certain
Matters Relating to the Non-Trust-Serviced Pari Passu
Loan..........................................................
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance
of Mortgage Loans...................................
Section 2.2 Acceptance
by Trustee..........................................
Section 2.3 Repurchase
of Mortgage Loans for Material Document Defects and
Material Breaches of Representations and Warranties...........
Section 2.4
Representations and Warranties.................................
Section 2.5 Conveyance
of Interests........................................
Section 2.6 Certain
Matters Relating to Non-Trust-Serviced Pari Passu Loan.
ARTICLE III
THE CERTIFICATES
Section 3.1 The
Certificates...............................................
Section 3.2
Registration...................................................
Section 3.3 Transfer
and Exchange of Certificates..........................
Section 3.4 Mutilated,
Destroyed, Lost or Stolen Certificates..............
Section 3.5 Persons
Deemed Owners..........................................
Section 3.6 Access to
List of Certificateholders' Names and Addresses......
Section 3.7 Book-Entry
Certificates........................................
Section 3.8 Notices to
Clearing Agency.....................................
Section 3.9 Definitive
Certificates........................................
ARTICLE IV
ADVANCES
Section 4.1 P&I
Advances by the Master Servicers...........................
Section 4.1A P&I Advances
with Respect to the Non-Trust Serviced Pari Passu
Loan..........................................................
Section 4.2 Servicing
Advances.............................................
Section 4.3 Advances
by the Trustee........................................
Section 4.4 Evidence
of Nonrecoverability..................................
Section 4.5 Interest
on Advances; Calculation of Outstanding Advances with
Respect to a Mortgage Loan....................................
Section 4.6
Reimbursement of Advances and Advance Interest.................
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1
Collections....................................................
Section 5.2
Application of Funds in the Certificate Accounts and Interest
Reserve Accounts..............................................
Section 5.3
Distribution Account, Excess Interest Sub-account and Reserve
Account.......................................................
Section 5.4 Trustee
Reports................................................
Section 5.5 Trustee
Tax Reports............................................
ARTICLE VI
DISTRIBUTIONS
Section 6.1
Distributions Generally........................................
Section 6.2 REMIC
I........................................................
Section 6.3 REMIC
II.......................................................
Section 6.4
[Reserved].....................................................
Section 6.5 REMIC
III......................................................
Section 6.6 Allocation
of Realized Losses, Expense Losses and Shortfalls
Due to Nonrecoverability......................................
Section 6.7 Net
Aggregate Prepayment Interest Shortfalls...................
Section 6.8 Adjustment
of Servicing Fees...................................
Section 6.9 Appraisal
Reductions...........................................
Section 6.10 Compliance with
Withholding Requirements.......................
Section 6.11 Prepayment
Premiums and Yield Maintenance Charges..............
ARTICLE VII
CERTAIN MATTERS CONCERNING THE TRUSTEE, THE CERTIFICATE
REGISTRAR,
AND THE PAYING AGENT
Section 7.1 Duties of
the Trustee and the Paying Agent.....................
Section 7.2 Certain
Matters Affecting the Trustee and the Paying Agent.....
Section 7.3 The
Trustee and the Paying Agent Not Liable for Certificates
or Interests or Mortgage Loans................................
Section 7.4 The
Trustee and the Paying Agent May Own Certificates..........
Section 7.5
Eligibility Requirements for the Trustee and the Paying Agent..
Section 7.6
Resignation and Removal of the Trustee or the Paying Agent.....
Section 7.7
Successor
Trustee or Paying Agent..............................
Section 7.8 Merger or
Consolidation of Trustee or Paying Agent.............
Section 7.9
Appointment of Co-Trustee, Separate Trustee, Agents or
Custodian.....................................................
Section 7.10 Authenticating
Agents..........................................
Section 7.11 Indemnification
of the Trustee and the Paying Agent............
Section 7.12 Fees and
Expenses of Trustee and the Paying Agent..............
Section 7.13 Collection of
Moneys...........................................
Section 7.14 Trustee to Act;
Appointment of Successor.......................
Section 7.15 Notification to
Holders........................................
Section 7.16 Representations
and Warranties of the Trustee, the Certificate
Registrar and the Paying Agent................................
Section 7.17 Fidelity Bond
and Errors and Omissions Insurance Policy
Maintained by the Trustee and the Paying Agent................
Section 7.18 Appointment of a
Fiscal Agent..................................
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing
Standard; Servicing Duties...........................
Section 8.2 Fidelity
Bond and Errors and Omissions Insurance Policy
Maintained by the Master Servicers............................
Section 8.3 Master
Servicers' General Power and Duties.....................
Section 8.4 Primary
Servicing and Sub-Servicing............................
Section 8.5 Servicers
May Own Certificates.................................
Section 8.6
Maintenance of Hazard Insurance, Other Insurance and Taxes.....
Section 8.7
[Reserved].....................................................
Section 8.8 Trustee to
Cooperate; Release of Trustee Mortgage Files........
Section 8.9 Documents,
Records and Funds in Possession of the Master
Servicers to Be Held for the Trustee for the Benefit of the
Certificateholders............................................
Section 8.10 Servicing
Compensation.........................................
Section 8.11 Master Servicer
Reports; Account Statements....................
Section 8.12
[Reserved].....................................................
Section 8.13
[Reserved].....................................................
Section 8.14 Operating
Statement Analysis Reports Regarding the Mortgaged
Properties....................................................
Section 8.15 Other Available
Information and Certain Rights of the Master
Servicer......................................................
Section 8.16 Rule 144A
Information..........................................
Section 8.17
Inspections....................................................
Section 8.18
[Reserved].....................................................
Section 8.19 Specially
Serviced Mortgage Loans..............................
Section 8.20 Representations,
Warranties and Covenants of the Master
Servicers.....................................................
Section 8.21 Merger or
Consolidation........................................
Section 8.22 Resignation of
the Master Servicer.............................
Section 8.23 Assignment or
Delegation of Duties by the Master Servicer......
Section 8.24 Limitation on
Liability of the Master Servicers and Others.....
Section 8.25 Indemnification;
Third-Party Claims............................
Section 8.26
[Reserved].....................................................
Section 8.27 Compliance with
REMIC Provisions and Grantor Trust Provisions..
Section 8.28
Termination....................................................
Section 8.29 Procedure Upon
Termination.....................................
Section 8.30 Notification to
Certificateholders.............................
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE
LOANS
BY THE SPECIAL SERVICERS
Section 9.1 Duties of
the Special Servicers................................
Section 9.2 Fidelity
Bond and Errors and Omissions Insurance Policy of the
Special Servicers.............................................
Section 9.3
Sub-Servicers..................................................
Section 9.4 Special
Servicers' General Powers and Duties...................
Section 9.5
[Reserved].....................................................
Section 9.6 Release of
Mortgage Files......................................
Section 9.7 Documents,
Records and Funds in Possession of the Special
Servicers to Be Held for the Trustee..........................
Section 9.8
Representations, Warranties and Covenants of the Special
Servicers.....................................................
Section 9.9 Standard
Hazard, Flood and Comprehensive General Liability
Insurance Policies............................................
Section 9.10 Presentment of
Claims and Collection of Proceeds...............
Section 9.11 Compensation to
the Special Servicer...........................
Section 9.12 Realization Upon
Defaulted Mortgage Loans......................
Section 9.13
Foreclosure....................................................
Section 9.14 Operation of REO
Property......................................
Section 9.15 Sale of REO
Property...........................................
Section 9.16 Realization on
Collateral Security.............................
Section 9.17
[Reserved].....................................................
Section 9.18
[Reserved].....................................................
Section 9.19
[Reserved].....................................................
Section 9.20 Merger or
Consolidation........................................
Section 9.21 Resignation of
the Special Servicer............................
Section 9.22 Assignment or
Delegation of Duties by the Special Servicers....
Section 9.23 Limitation on
Liability of the Special Servicers and Others....
Section 9.24 Indemnification;
Third-Party Claims............................
Section 9.25
[Reserved].....................................................
Section 9.26 Special
Servicers May Own Certificates.........................
Section 9.27 Tax
Reporting..................................................
Section 9.28 Application of
Funds Received..................................
Section 9.29 Compliance with
REMIC Provisions and Grantor Trust Provisions..
Section 9.30
Termination....................................................
Section 9.31 Procedure Upon
Termination.....................................
Section 9.32 Certain Special
Servicer Reports...............................
Section 9.33 Special
Servicers to Cooperate with the Master Servicers and
Trustee.......................................................
Section 9.34
[Reserved].....................................................
Section 9.35
[Reserved].....................................................
Section 9.36 Sale of
Defaulted Mortgage Loans...............................
Section 9.37 Operating
Adviser; Elections...................................
Section 9.38 Limitation on
Liability of Operating Adviser...................
Section 9.39 Rights of
Operating Adviser....................................
Section 9.40 Litigation
Control.............................................
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of
Trust Upon Repurchase or Liquidation of All
Mortgage Loans................................................
Section 10.2 Procedure Upon
Termination of Trust............................
Section 10.3 Additional REMIC
Termination Requirements......................
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
Section 11.1 Limitation on
Rights of Holders................................
Section 11.2 Access to List
of Holders......................................
Section 11.3 Acts of Holders
of Certificates................................
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
Section 12.1 REMIC
Administration...........................................
Section 12.2
Prohibited
Transactions and Activities.........................
Section 12.3 Modifications of
Mortgage Loans................................
Section 12.4 Liability with
Respect to Certain Taxes and Loss of REMIC
Status........................................................
Section 12.5 Grantor Trust
Administration...................................
ARTICLE XIII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 13.1 Intent of the
Parties; Reasonableness..........................
Section 13.2 Certain
Information to be Provided by the Master Servicers,
the Special Servicers, any Primary Servicer and the Trustee...
Section 13.3 Filing
Obligations.............................................
Section 13.4 Form 10-D
Filings..............................................
Section 13.5 Form 10-K
Filings..............................................
Section 13.6 Sarbanes-Oxley
Certification...................................
Section 13.7 Form 8-K
Filings...............................................
Section 13.8 Form 15 Filing;
Incomplete Exchange Act Filings; Amendments to
Exchange Act Reports..........................................
Section 13.9 Annual
Compliance Statements...................................
Section 13.10 Annual Reports on
Assessment of Compliance with Servicing
Criteria......................................................
Section 13.11 Annual Independent
Public Accountants' Servicing Report........
Section 13.12 Exchange Act Reporting
and Regulation AB Compliance
Indemnification...............................................
Section 13.13
Amendments.....................................................
Section 13.14 Exchange Act Report
Signatures; Article XIII Notices...........
Section 13.15 Termination of the
Trustee and Sub-Servicers...................
ARTICLE XIV
ADDITIONAL SERVICING PROVISIONS
Section 14.1 Enforcement of
Due-on-Sale and Due-on-Encumbrance Clauses;
Assumption Agreements; Other Provisions.......................
Section 14.2 Modifications,
Waivers, Amendments and Consents................
Section 14.3 Primary Servicer
Authority.....................................
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1
Binding
Nature of Agreement....................................
Section 15.2 Entire
Agreement...............................................
Section 15.3
Amendment......................................................
Section 15.4 GOVERNING
LAW..................................................
Section 15.5
Notices........................................................
Section 15.6 Severability of
Provisions.....................................
Section 15.7 Indulgences; No
Waivers........................................
Section 15.8 Headings Not to
Affect Interpretation..........................
Section 15.9 Benefits of
Agreement..........................................
Section 15.10 Special Notices to the
Rating Agencies.........................
Section 15.11
Counterparts...................................................
Section 15.12 Intention of
Parties...........................................
Section 15.13 Recordation of
Agreement.......................................
Section 15.14 Rating Agency
Monitoring Fees..................................
EXHIBITS AND SCHEDULES
EXHIBIT A-1
Form of Class A-1 Certificate
EXHIBIT A-2
Form of Class A-1A Certificate
EXHIBIT A-3
Form of Class A-2 Certificate
EXHIBIT A-4
Form of Class A-3 Certificate
EXHIBIT A-5
Form of Class A-4 Certificate
EXHIBIT A-6
Form of Class A-M Certificate
EXHIBIT A-7
Form of Class A-J Certificate
EXHIBIT A-8
Form of Class B Certificate
EXHIBIT A-9
Form of Class C Certificate
EXHIBIT A-10
Form of Class D Certificate
EXHIBIT A-11
Form of Class E Certificate
EXHIBIT A-12
Form of Class F Certificate
EXHIBIT A-13
Form
of Class G Certificate
EXHIBIT A-14
Form of Class H Certificate
EXHIBIT A-15
Form of Class J Certificate
EXHIBIT A-16
Form of Class K Certificate
EXHIBIT A-17
Form of Class L Certificate
EXHIBIT A-18
Form of Class M Certificate
EXHIBIT A-19
Form of Class N Certificate
EXHIBIT A-20
Form of Class O Certificate
EXHIBIT A-21
Form of Class P Certificate
EXHIBIT A-22
Form of Class EI Certificate
EXHIBIT A-23
Form of Class R-I Certificate
EXHIBIT A-24
Form of Class R-II Certificate
EXHIBIT A-25
Form of Class R-III Certificate
EXHIBIT A-26
Form of Class X Certificate
EXHIBIT A-27
Form of Class X-Y Certificate
EXHIBIT B-1
Form of Initial Certification of Trustee (Section 2.2)
EXHIBIT B-2
Form of Final Certification of Trustee (Section 2.2)
EXHIBIT C
Form of Request for Release
EXHIBIT D-1
Form of Transferor Certificate for Transfers to
Definitive Privately Offered Certificates
(Section 3.3(c))
EXHIBIT D-2A
Form I of Transferee Certificate for Transfers of
Definitive Privately Offered Certificates
(Section 3.3(c))
EXHIBIT D-2B
Form II of Transferee Certificate for Transfers of
Definitive Privately Offered Certificates
(Section 3.3(c))
EXHIBIT D-3A
Form I of Transferee Certificate for Transfers of
Interests in
Book-Entry Privately Offered Certificates
(Section 3.3(c))
EXHIBIT D-3B
Form II of Transferee Certificate for Transfers of
Interests in Book-Entry Privately Offered Certificates
(Section 3.3(c))
EXHIBIT E-1
Form of Transfer Affidavit and Agreement for Transfers
of REMIC Residual Certificates (Section 3.3(e))
EXHIBIT E-2
Form of Transferor Certificate for Transfers of REMIC
Residual Certificates (Section 3.3(e))
EXHIBIT F
Form of Transferor Certificate for Transfers of
Regulation S Certificates
EXHIBIT G
[Reserved]
EXHIBIT H
Form of Exchange Certification
EXHIBIT I
Form of EUROCLEAR or Clearstream Certificate
(Section 3.7(d))
EXHIBIT J
List of Loans to Which Excess Servicing Fees Are Paid
EXHIBIT K-1
Form of Mortgage Loan Purchase Agreement I (MSMC)
EXHIBIT K-2
Form of Mortgage Loan Purchase Agreement II (Natixis)
EXHIBIT K-3
Form of Mortgage Loan Purchase Agreement III (SunTrust)
EXHIBIT K-4
Form of Mortgage Loan Purchase Agreement IV (NCB, FSB)
EXHIBIT L
[Reserved]
EXHIBIT M
Form of Monthly Certificateholders Report
(Section 5.4(a))
EXHIBIT N
[Reserved]
EXHIBIT O
[Reserved]
EXHIBIT P
[Reserved]
EXHIBIT Q
[Reserved]
EXHIBIT R
[Reserved]
EXHIBIT S-1A
Form of Power of Attorney to General Master Servicer
(Section 8.3(c))
EXHIBIT S-1B
Form of Power of Attorney to NCB Master Servicer
(Section 8.3(c))
EXHIBIT S-2A
Form of Power of Attorney to General Special Servicer
(Section 9.4(a))
EXHIBIT S-2B
Form of Power of Attorney to Co-op Special Servicer
(Section 9.4(a))
EXHIBIT T
Form of Subordination Agreement for NCB, FSB Subordinate
Debt
EXHIBIT U
[Reserved]
EXHIBIT V
[Reserved]
EXHIBIT W
[Reserved]
EXHIBIT X
[Reserved]
EXHIBIT Y
Investor Certification (Section 5.4(a))
EXHIBIT Z
Form of Notice and Certification regarding Defeasance of
Mortgage Loan (Section 8.3(h))
EXHIBIT AA
Additional Disclosure Notification
EXHIBIT BB-1
Form of Sarbanes-Oxley Certification (Section 13.6)
EXHIBIT BB-2
Form of Master Servicer Performance Certification
(Section 13.6)
EXHIBIT BB-3
Form of Special Servicer Performance Certification
(Section 13.6)
EXHIBIT BB-4
Form of Trustee Performance Certification (Section 13.6)
EXHIBIT BB-5
Form of Reporting Sub-Servicer Performance Certification
(Section 13.6)
SCHEDULE I
MSMC Loan Schedule
SCHEDULE II
Natixis Loan Schedule
SCHEDULE III
SunTrust Loan Schedule
SCHEDULE IV
NCB, FSB Loan Schedule
SCHEDULE V
Mortgage Loans for which Disbursement of Earnouts and
Holdbacks to be processed by General Special Servicer
SCHEDULE VI
[Reserved]
SCHEDULE VII
List of Escrow Accounts Not Currently Eligible Accounts
(Section 8.3(e))
SCHEDULE VIII
Certain Escrow Accounts for Which a Report Under
Section 5.1(g) is Required
SCHEDULE IX
List of Mortgagors that are Third-Party Beneficiaries
Under Section 2.3(a)
SCHEDULE X
[Reserved]
SCHEDULE XI
Earn-Out Reserves
SCHEDULE XII
List of Mortgage Loans for which a Scheduled Payment is
Due After the End of a Collection Period
SCHEDULE XIII
List of Mortgage Loans that Permit Voluntary Principal
Prepayment Without Payment of a Full Month's Interest
SCHEDULE XIV
[Reserved]
SCHEDULE XV
[Reserved]
SCHEDULE XVI
Relevant Servicing Criteria
SCHEDULE XVII
Additional Form 10-D Disclosure
SCHEDULE XVIII
Additional Form 10-K Disclosure
SCHEDULE XIX
Form 8-K Disclosure Information
SCHEDULE XX
Seller Sub-Servicers
<PAGE>
THIS POOLING AND SERVICING AGREEMENT is dated as of March 1, 2007
(this
"Agreement") among MORGAN STANLEY CAPITAL I INC., a Delaware
corporation, as
depositor (the "Depositor"), WELLS FARGO BANK, N.A., as a master
servicer (the
"General Master Servicer"), LNR PARTNERS, INC., as the special
servicer (the
"General Special Servicer"), NCB, FSB, as a master servicer (the
"NCB Master
Servicer"), NATIONAL CONSUMER COOPERATIVE BANK, as a special
servicer (the
"Co-op Special Servicer") and U.S. BANK NATIONAL ASSOCIATION, as
trustee of the
Trust, as paying agent and as certificate registrar ("Trustee,"
"Paying Agent"
and "Certificate Registrar").
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage Loans
from
Morgan Stanley Mortgage Capital Inc., as seller ("MSMC"), SunTrust
Bank, as
seller ("SunTrust"), Natixis Real Estate Capital Inc. (formerly
IXIS Real Estate
Capital Inc.), as seller ("Natixis"), and NCB, FSB, as seller
("NCB, FSB"), and
will be the owner of the Mortgage Loans and the other property
being conveyed by
it to the Trustee for inclusion in the Trust which is hereby
created. On the
Closing Date, the Depositor will acquire (i) the REMIC I Regular
Interests and
the Class R-I Certificates as consideration for its transfer to the
Trust of the
Mortgage Loans (other than any Excess Interest payable thereon) and
the other
property constituting REMIC I; (ii) the REMIC II Regular Interests
and the Class
R-II Certificates as consideration for its transfer of the REMIC I
Regular
Interests to the Trust; (iii) the REMIC III Certificates as
consideration for
its transfer of the REMIC II Regular Interests to the Trust; and
(iv) the Class
EI Certificates as consideration for its transfer of the Excess
Interest to the
Trust. The Depositor has duly authorized the execution and delivery
of this
Agreement to provide for the foregoing and the issuance of (A) the
REMIC I
Regular Interests and the Class R-I Certificates representing in
the aggregate
the entire beneficial ownership of REMIC I, (B) the REMIC II
Regular Interests
and the Class R-II Certificates representing in the aggregate the
entire
beneficial ownership of REMIC II, (C) the REMIC III Certificates
representing in
the aggregate the entire beneficial ownership of REMIC III and (D)
the Class EI
Certificates representing in the aggregate the entire beneficial
ownership of
the Class EI Grantor Trust.
Excess Interest received on the Mortgage Loans shall be held in
the
Class EI Grantor Trust for the benefit of the Class EI
Certificates. All
covenants and agreements made by the Depositor and the Trustee
herein with
respect to the Mortgage Loans and the other property constituting
the Trust are
for the benefit of the Holders of the REMIC I Regular Interests,
the REMIC II
Regular Interests, the REMIC Regular Certificates, the Class EI
Certificates and
the Residual Certificates. The parties hereto are entering into
this Agreement,
and the Trustee is accepting the trusts created hereby, for good
and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged.
The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class
A-M
and Class A-J Certificates will be offered for sale pursuant to the
prospectus
(the "Prospectus") dated February 6, 2007, as supplemented by the
free writing
prospectus dated March 12, 2007 (together with the Prospectus, the
"Preliminary
Prospectus Supplement"), and as further supplemented by the final
prospectus
supplement dated March 22, 2007 (together with the Prospectus, the
"Final
Prospectus Supplement") and the Class X, Class X-Y, Class B, Class
C and Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class
N, Class O, Class P and Class EI Certificates will be offered for
sale pursuant
to a Private Placement Memorandum dated March 22, 2007.
REMIC I
Each REMIC I Regular Interest (a "Corresponding REMIC I Regular
Interest") will relate to a specific Mortgage Loan. Each
Corresponding REMIC I
Regular Interest (other than the Group X-Y REMIC I Regular
Interests) will have
a pass-through rate equal to the REMIC I Net Mortgage Rate of the
related
Mortgage Loan, an initial principal amount (the initial
"Certificate Balance")
equal to the Scheduled Principal Balance as of the Cut-Off Date (as
herein
defined) of the Mortgage Loan to which the Corresponding REMIC I
Regular
Interest relates, and a latest possible maturity date set to the
Final Rated
Distribution Date (as defined herein). Each Group X-Y REMIC I
Regular Interest
will relate to a specific Specially Designated Co-op Loan. Each
Group X-Y REMIC
I Regular Interest will have a Pass-Through Rate equal to the Class
X-Y Strip
Rate, an initial Notional Amount equal to the Scheduled Principal
Balance as of
the Cut Off Date of the Specially Designated Co-op Loan to which
such Group X-Y
REMIC I Regular Interest relates, and a latest possible maturity
date set to the
Final Rated Distribution Date. Excess Interest shall not be
included as an asset
of REMIC I. The Class R-I Certificates will be designated as the
sole Class of
residual interests in REMIC I and will have no Certificate Balance,
no Notional
Amount and no Pass-Through Rate, but will be entitled to receive
the proceeds of
any assets remaining in REMIC I after all Classes of REMIC I
Regular Interests
have been paid in full.
REMIC II
The REMIC II Regular Interests have the pass-through rates and
Certificate Balances or Notional Amount set forth in the definition
thereof. The
Class R-II Certificates will be designated as the sole Class of
residual
interests in REMIC II and will have no Certificate Balance and no
Pass-Through
Rate, but will be entitled to receive the proceeds of any assets
remaining in
REMIC II after all Classes of REMIC II Regular Interests have been
paid in full.
The following table sets forth the Class or Component designation,
the
corresponding REMIC II Regular Interest (the "Corresponding REMIC
II Regular
Interest"), the Corresponding Components of the Class X
Certificates (the
"Corresponding Components") and the Original Class REMIC II
Certificate Balance
or Notional Balance for each Class of Principal Balance
Certificates and the
Class X-Y Certificates (the "Corresponding Certificates").
<TABLE>
<CAPTION>
Original
Class Certificate Corresponding
REMIC Original REMIC
II
Corresponding
Balance or Notional II Regular
Certificate Balance Component of Class X
Corresponding
Certificates
Balance
Interests (1) or
Notional Balance Certificates
(1)
---------------------------- -------------------
------------------- -------------------
--------------------
<S>
<C>
<C>
<C>
<C>
Class A-1
$43,000,000
A-1
$43,000,000
A-1
Class A-1A
$477,014,000
A-1A
$477,014,000
A-1A
Class A-2
$114,800,000
A-2
$114,800,000
A-2
Class A-3
$64,000,000
A-3
$64,000,000
A-3
Class A-4
$448,816,000
A-4
$448,816,000
A-4
Class A-M
$163,947,000
A-M
$163,947,000
A-M
Class A-J
$149,601,000
A-J
$149,601,000
A-J
Class X-Y
$131,338,831
X-Y
$131,338,831
N/A
Class B
$32,790,000
B
$32,790,000
B
Class C
$16,395,000
C
$16,395,000
C
Class D
$16,394,000
D
$16,394,000
D
Class E
$14,346,000
E
$14,346,000
E
Class F
$18,444,000
F
$18,444,000
F
Class G
$14,345,000
G
$14,345,000
G
Class H
$18,444,000
H
$18,444,000
H
Class J
$8,198,000
J
$8,198,000
J
Class K
$2,049,000
K
$2,049,000
K
Class L
$4,099,000
L
$4,099,000
L
Class M
$6,148,000
M
$6,148,000
M
Class N
$2,049,000
N
$2,049,000
N
Class O
$6,148,000
O
$6,148,000
O
Class P
$18,444,501
P
$18,444,501
P
</TABLE>
---------
(1) The REMIC II
Regular Interest and the Component of the Class X Certificates
that
correspond to any particular Class of Principal Balance
Certificates
also
correspond to each other and, accordingly, constitute the
"Corresponding REMIC II Regular Interest" and the
"Corresponding
Component," respectively, with respect to each other.
REMIC III
The following sets forth the Class designation, Pass-Through
Rate,
initial Aggregate Certificate Balance (or initial Notional Amount)
and Final
Scheduled Distribution Date for each Class of REMIC III
Certificates comprising
the interests in REMIC III created hereunder.
<TABLE>
<CAPTION>
Initial Aggregate
REMIC Regular
Approximate Initial
Certificate Balance
Final Scheduled
Certificate Designation
Pass-Through Rate(a) or
Notional Amount
Distribution Date(b)
-----------------------
--------------------
-------------------
--------------------
<S>
<C>
<C>
<C>
Class A-1
5.05%
$43,000,000
1/15/2012
Class A-1A
5.31%
$477,014,000
2/15/2017
Class A-2
5.24%
$114,800,000
3/15/2012
Class A-3
5.33%
$64,000,000
8/15/2016
Class A-4
5.36%
$448,816,000
2/15/2017
Class A-M
5.41%
$163,947,000
3/15/2017
Class A-J
5.44%
$149,601,000
4/15/2017
Class X
0.62%
$1,639,471,501
N/A
Class X-Y
0.10%
$131,338,831
N/A
Class B
5.52%
$32,790,000
4/15/2017
Class C
5.56%
$16,395,000
4/15/2017
Class D
5.59%
$16,394,000
4/15/2017
Class E
5.69%
$14,346,000
4/15/2017
Class F
5.98%
$18,444,000
4/15/2017
Class G
5.98%
$14,345,000
4/15/2017
Class H
5.98%
$18,444,000
4/15/2017
Class J
5.06%
$8,198,000
4/15/2017
Class K
5.06%
$2,049,000
7/15/2017
Class L
5.06%
$4,099,000
10/15/2018
Class M
5.06%
$6,148,000
1/15/2019
Class N
5.06%
$2,049,000
1/15/2019
Class O
5.06%
$6,148,000
1/15/2019
Class P
5.06%
$18,444,501
11/15/2026
Class R-III(c)
N/A
N/A
N/A
</TABLE>
---------
(a) On each
Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates will be determined
as
described herein under the definition of "Pass-Through Rate."
(b) The Final
Scheduled Distribution Date for each Class of Certificates
assigned a rating is the Distribution Date on which such Class is
expected
to
be paid in full, assuming that timely payments (and no prepayments)
will
be
made on the Mortgage Loans in accordance with their terms (except
that
each
ARD Loan will be prepaid in full on its Anticipated Repayment Date)
in
the
case of the REMIC Regular Certificates.
(c) The Class R-III
Certificates will be entitled to receive the proceeds of
any
remaining assets in REMIC III after the principal amounts of all
REMIC
Regular Certificates have been reduced to zero and any Realized
Losses
previously allocated thereto (and any interest thereon) have
been
reimbursed.
Class EI Grantor Trust
Each Class EI Certificate will be entitled to Excess Interest
(neither
of which will be a part of any REMIC Pool). The parties intend that
(i) the
portions of the Trust representing the Excess Interest and the
Excess Interest
Sub-account (such portion of the Trust, the "Class EI Grantor
Trust") shall be
treated as a grantor trust under subpart E of Part 1 of subchapter
J of Chapter
1 of Subtitle A of the Code and (ii) the Class EI Certificates
shall represent
pro rata undivided beneficial interests in the portion of the Trust
consisting
of the entitlement to receive Excess Interest.
As of the Cut-Off Date, the Mortgage Loans had an Aggregate
Principal
Balance of $1,461,178,000.
As provided herein, with respect to the Trust, the Trustee will
make an
election for the segregated pool of assets described in the first
paragraph of
Section 12.1(a) hereof (including the Mortgage Loans (other than
the Excess
Interest payable with respect to such Mortgage Loans)) to be
treated for federal
income tax purposes as a real estate mortgage investment conduit
("REMIC I").
The REMIC I Regular Interests will be designated as the "regular
interests" in
REMIC I and the Class R-I Certificates will be designated as the
sole Class of
"residual interests" in REMIC I for purposes of the REMIC
Provisions.
As provided herein, with respect to the Trust, the Trustee will
make an
election for the segregated pool of assets described in the second
paragraph of
Section 12.1(a) hereof consisting of the REMIC I Regular Interests
to be treated
for federal income tax purposes as a real estate mortgage
investment conduit
("REMIC II"). The REMIC II Regular Interests will be designated as
the "regular
interests" in REMIC II and the Class R-II Certificates will be
designated as the
sole Class of "residual interests" in REMIC II for purposes of the
REMIC
Provisions.
As provided herein, with respect to the Trust, the Trustee will
make an
election for the segregated pool of assets described in the third
paragraph of
Section 12.1(a) hereof consisting of the REMIC II Regular Interests
to be
treated for federal income tax purposes as a real estate mortgage
investment
conduit ("REMIC III"). The REMIC Regular Certificates will be
designated as the
"regular interests" in REMIC III and the Class R-III Certificates
(together with
the REMIC Regular Certificates, the "REMIC III Certificates") will
be designated
as the sole Class of "residual interests" in REMIC III for purposes
of the REMIC
Provisions.
ARTICLE I
DEFINITIONS
Section 1.1 Definitions
Whenever used in this Agreement, the following words and
phrases,
unless the context otherwise requires, shall have the following
meanings:
"1933 Act" means the Securities Act of 1933, as amended.
"1934 Act" means the Securities Exchange Act of 1934, as
amended.
"1940 Act" means the Investment Company Act of 1940, as
amended.
"2007-HQ11 Depositor" means the "Depositor" under the 2007-HQ11
Pooling
and Servicing Agreement, which as of the date hereof is Morgan
Stanley Capital I
Inc.
"2007-HQ11
Master Servicer" means the master servicer under the
2007-HQ11 Pooling and Servicing Agreement, which as of the date
hereof is
Capmark Finance Inc.
"2007-HQ11 Paying Agent" means the "Paying Agent," "Certificate
Registrar" and "Authenticating Agent" under the 2007-HQ11 Pooling
and Servicing
Agreement, which as of the date hereof is LaSalle Bank National
Association.
"2007-HQ11 Pooling and Servicing Agreement" means the pooling
and
servicing agreement dated as of February 1, 2007 among the
2007-HQ11 Depositor,
the 2007-HQ11 Master Servicer, the 2007-HQ11 Special Servicer, the
2007-HQ11
Trustee and the 2007-HQ11 Paying Agent, pursuant to which the
Commercial
Mortgage Pass-Through Certificates, Series 2007-HQ11, were
issued.
"2007-HQ11 Special Servicer" means the special servicer under
the
2007-HQ11 Pooling and Servicing Agreement, which as of the date
hereof is J.E.
Robert Company, Inc.
"2007-HQ11 Trustee" means the "Trustee" under the 2007-HQ11 Pooling
and
Servicing Agreement, which as of the date hereof is Wells Fargo
Bank, N.A.
"Accountant" means a Person engaged in the practice of accounting
who
is Independent.
"Accrued Certificate Interest" means, with respect to each
Distribution
Date and any Class of Interests or Principal Balance Certificates,
interest
accrued during the Interest Accrual Period relating to such
Distribution Date on
the Aggregate Certificate Balance of such Class or Interest as of
the close of
business on the immediately preceding Distribution Date at the
respective rates
per annum set forth in the definition of the applicable
Pass-Through Rate for
each such Class. Accrued Certificate Interest on the Class X
Certificates for
each Distribution Date will equal the Accrued Component Interest
for the related
Interest Accrual Period for all of the Components for such
Distribution Date.
Accrued Certificate Interest on the Class X-Y Certificates for each
Distribution
Date will equal the Class X-Y Interest Amount.
"Accrued Component Interest" With respect to each Component of
the
Class X Certificates for any Distribution Date, one month's
interest at the
Class X Strip Rate applicable to such Component for such
Distribution Date,
accrued on the Component Notional Amount of such Component
outstanding
immediately prior to such Distribution Date. Accrued Component
Interest shall be
calculated on a 30/360 basis and, with respect to any Component and
any
Distribution Date, shall be deemed to accrue during the calendar
month preceding
the month in which such Distribution Date occurs.
"Acquisition Date" means the date upon which, under the Code (and
in
particular the REMIC Provisions and Section 856(e) of the Code),
the Trust or a
REMIC Pool is deemed to have acquired a Mortgaged Property (or an
interest
therein, in the case of each Mortgaged Property securing any Loan
Group).
"Additional Disclosure Notification" means the form of notification
to
be included with any Additional Form 10-D Disclosure, Additional
Form 10-K
Disclosure or Form 8-K Disclosure Notification, which is attached
hereto as
Exhibit AA.
"Additional Form 10-D Disclosure" has the meaning set forth in
Section
13.4.
"Additional Form 10-K Disclosure" has the meaning set forth in
Section
13.5.
"Additional Servicer" means each Affiliate of the Master
Servicers,
MSMC, Natixis, NCB, FSB, the Trustee or the Depositor that Services
any of the
Mortgage Loans and each Person, other than the Special Servicers,
who is not an
Affiliate of the Master Servicers, MSMC, Natixis, NCB, FSB, the
Trustee or the
Depositor, and who Services 10% or more of the Mortgage Loans
(based on their
Principal Balance). For clarification purposes, the Trustee is an
Additional
Servicer.
"Additional Trust Expense" means any of the following items:
(i)
Special Servicing Fees, Work-Out Fees and Liquidation Fees, (ii)
Advance
Interest that cannot be paid from Late Fees and default interest in
accordance
with Section 4.6(c); (iii) amounts paid to indemnify the Master
Servicers, the
Special Servicers, any Primary Servicer, the 2007-HQ11 Master
Servicer, the
2007-HQ11 Special Servicer, the 2007-HQ11 Trustee, the 2007-HQ11
Paying Agent,
the Certificate Registrar, the Trustee, the Paying Agent (or any
other Person)
pursuant to the terms of this Agreement; (iv) to the extent not
otherwise paid,
any federal, state, or local taxes imposed on the Trust or its
assets and paid
from amounts on deposit in the Certificate Accounts or Distribution
Account, (v)
the amount of any Advance plus interest due thereon and
Unliquidated Advances
that are not recovered from the proceeds of a Mortgage Loan or Loan
Group upon a
Final Recovery Determination, (vi) to the extent not included in
the calculation
of a Realized Loss and not covered by indemnification by one of the
parties
hereto or otherwise, any other unanticipated cost, liability, or
expense (or
portion thereof) of the Trust (including costs of collecting such
amounts or
other Additional Trust Expenses) which the Trust has not recovered,
and in the
judgment of the Master Servicer (or the Special Servicer, in the
case of a
Specially Serviced Mortgage Loan) will not, recover from the
related Mortgagor
or Mortgaged Property or otherwise, including a Modification Loss
described in
clause (ii) of the definition thereof; and (vii) with respect to
the
Non-Trust-Serviced Pari Passu Loan, the pro rata portion of any
fees, costs and
expenses that relate directly to the servicing of the
Non-Trust-Serviced Loan
Group and as to which the 2007-HQ11 Master Servicer, the 2007-HQ11
Special
Servicer or the 2007-HQ11 Trustee (in respect of the servicing
advances made by
it for the Non-Trust Serviced Loan Group and excluding the trustee
fee and costs
and expenses related to REMIC or the trust fund in accordance with
the 2007-HQ11
Pooling and Servicing Agreement) are entitled to reimbursement
pursuant to the
2007-HQ11 Pooling and Servicing Agreement, that is allocable to
the
Non-Trust-Serviced Pari Passu Loan pursuant to the related
Intercreditor
Agreement, to the extent that such amounts are not payable out of
proceeds on
the Non-Trust-Serviced Pari Passu Loan; provided, however, that in
the case of
each Whole Loan, "Additional Trust Expense" shall not include any
of the
foregoing amounts that have been recovered from the related
Mortgagor or
Mortgaged Property. Notwithstanding anything in this Agreement to
the contrary,
"Additional Trust Expenses" shall not include allocable overhead of
a Master
Servicer, a Special Servicer, the 2007-HQ11 Master Servicer, the
2007-HQ11
Special Servicer, the 2007-HQ11 Trustee, the 2007-HQ11 Paying
Agent, the
Trustee, the Paying Agent or the Certificate Registrar such as
costs for office
space, office equipment, supplies and related expenses, employee
salaries and
related expenses, and similar internal costs and expenses, except
to the extent
specifically allowed in this Agreement.
"Adjusted Mortgage Rate" means, with respect to any Mortgage Loan
that
accrues interest on the basis of a 360-day year consisting of
twelve 30-day
months ("30/360 basis"), and with respect to any Distribution Date,
the Mortgage
Rate thereof minus the Administrative Cost Rate. For any Mortgage
Loan that
accrue(s) interest on a basis other than that of a 30/360 basis and
with respect
to any Distribution Date, the rate that, when applied to the
Principal Balance
of the related Mortgage Loan (on the day prior to the Due Date
preceding such
Distribution Date) on a 30/360 basis for the related loan accrual
period, yields
the amount of interest actually due on such Mortgage Loan on the
Due Date
preceding such Distribution Date (less the Administrative Cost Rate
for such
Mortgage Loan); provided that for purposes of this definition, (i)
the Adjusted
Mortgage Rate for the loan accrual period relating to the Due Dates
in both
January and February in any year that is not a leap year and in
February in any
year that is a leap year (in either case, unless the related
Distribution Date
is the Final Distribution Date), shall be determined net of any
amounts
transferred to the Interest Reserve Accounts and (ii) the Adjusted
Mortgage Rate
for the loan accrual period relating to the Due Date in March
(commencing in
March 2007) (or February if the related Distribution Date is the
Final
Distribution Date) shall be determined taking into account the
addition of any
amounts withdrawn from the Interest Reserve Accounts, provided,
further, that if
the Maturity Date on any Mortgage Loan occurs on the Due Date in
January or
February or if there is a Principal Prepayment on any Mortgage Loan
on the Due
Date in January or February, then the Adjusted Mortgage Rate shall
be determined
taking into account the addition of any amounts withdrawn from the
Interest
Reserve Account for such month.
"Administrative Cost Rate" means the sum of the Master Servicing
Fee
Rate, the Primary Servicing Fee Rate, the Excess Servicing Fee
Rate, the Trustee
Fee Rate and, in the case of the Non-Trust Serviced Pari Passu
Loan, the Pari
Passu Loan Servicing Fee Rate; provided, that, in the case of the
RREEF
Portfolio Pari Passu Loan, the Administrative Cost Rate shall be
equal to the
sum of the Pari Passu Loan Servicing Fee Rate and the Trustee Fee
Rate.
"Advance" means either a P&I Advance or a Servicing
Advance.
"Advance Interest" means interest payable to a Master Servicer,
a
Special Servicer or the Trustee on outstanding Advances (other than
Unliquidated
Advances) pursuant to Section 4.5 of this Agreement and any
interest payable to
the 2007-HQ11 Master Servicer or the 2007-HQ11 Trustee, with
respect to the Pari
Passu Loan Nonrecoverable Advances pursuant to Section 4.4(b)
hereof.
"Advance Rate" means a per annum rate equal to the Prime Rate
as
published in the "Money Rates" section of The Wall Street Journal
from time to
time or, if no longer so published, such other publication as
determined by the
Trustee in its reasonable discretion.
"Adverse Grantor Trust Event" shall mean any action taken by a
Person
or the failure of a Person to take any action that, under the
Grantor Trust
Provisions, if taken or not taken, as the case may be, could
endanger the status
of the Class EI Grantor Trust as a grantor trust under the Grantor
Trust
Provisions or result in the imposition of a tax upon the Class EI
Grantor Trust
or any of their respective assets or transactions.
"Adverse REMIC Event" means any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, would either
(i) endanger
the status of any REMIC Pool as a REMIC or (ii) subject to Section
9.14(f),
result in the imposition of a tax upon the income of any REMIC Pool
or any of
their respective assets or transactions, including (without
limitation) the tax
on prohibited transactions as defined in Section 860F(a)(2) of the
Code and the
tax on prohibited contributions set forth in Section 860G(d) of the
Code.
"Affiliate" means, with respect to any specified Person, any
other
Person controlling or controlled by or under common control with
such specified
Person. For the purposes of this definition, "control" when used
with respect to
any specified Person means the power to direct the management and
policies of
such Person, directly or indirectly, whether through the ownership
of voting
securities, by contract or otherwise; and the terms "controlling"
and
"controlled" have meanings correlative to the foregoing.
"Aggregate Certificate Balance" means the aggregate of the
Certificate
Balances of the Principal Balance Certificates, the REMIC I Regular
Interests
(other than the Group X-Y REMIC I Regular Interests), the REMIC II
Regular
Interests (other than REMIC II Regular Interest X-Y) or,
collectively, the REMIC
Regular Certificates, as the case may be, at any date of
determination. With
respect to a Class of Principal Balance Certificates, REMIC I
Regular Interests
(other than the Group X-Y REMIC I Regular Interests) or REMIC II
Regular
Interests (other than REMIC II Regular Interest X-Y), Aggregate
Certificate
Balance shall mean the aggregate of the Certificate Balances of all
Certificates
or Interests, as the case may be, of that Class at any date of
determination.
"Aggregate Principal Balance" means, at the time of any
determination
and as the context may require, the aggregate of the Scheduled
Principal
Balances for all Mortgage Loans.
"Agreement" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
"Anticipated Repayment Date" means, with respect to the ARD Loans,
the
date on which a substantial principal payment on an ARD Loan is
anticipated to
be made, as set forth in the related Mortgage Note.
"Appraisal" means an appraisal by an Independent state certified
MAI
appraiser having at least five years' experience in appraising
property of the
same type as, and in the same geographic area as, the Mortgaged
Property being
appraised, which appraisal complies with the Uniform Standards of
Professional
Appraisal Practices and states the "market value" of the subject
property as
defined in 12 C.F.R. ss. 225.62.
"Appraisal Event" means, with respect to any Mortgage Loan (other
than
the Non-Trust Serviced Pari Passu Loan), not later than the
earliest of (i) the
date 120 days after the occurrence of any delinquency in payment
with respect to
such Mortgage Loan if such delinquency remains uncured, (ii) the
date 30 days
after receipt of notice that the related Mortgagor has filed a
bankruptcy
petition or the related Mortgagor has become the subject of
involuntary
bankruptcy proceedings or the related Mortgagor has consented to
the filing of a
bankruptcy proceeding against it or a receiver is appointed in
respect of the
related Mortgaged Property, provided such petition or appointment
is still in
effect, (iii) the date that is 30 days following the date the
related Mortgaged
Property becomes an REO Property and (iv) the effective date of any
modification
to a Money Term of such Mortgage Loan, other than an extension of
the date that
a Balloon Payment is due for a period of less than six months from
the original
due date of such Balloon Payment and, with respect to the Non-Trust
Serviced
Pari Passu Loan, an "appraisal event" or similar term as determined
pursuant to
the 2007-HQ11 Pooling and Servicing Agreement..
"Appraisal Reduction" means, with respect to any Required
Appraisal
Loan with respect to which an Appraisal or internal valuation is
performed
pursuant to Section 6.9, an amount equal to the excess of (A) the
sum, as of the
first Determination Date that is at least 15 days after the date on
which the
Appraisal or internal valuation is obtained or performed, of (i)
the Scheduled
Principal Balance of such Mortgage Loan (or, in the case of an REO
Property, the
related REO Mortgage Loan) less the undrawn principal amount of any
letter of
credit or debt service reserve, if applicable, that is then
securing such
Mortgage Loan, (ii) to the extent not previously advanced by the
Master Servicer
or the Trustee, all accrued and unpaid interest on such Mortgage
Loan (or, in
the case of an REO Property, the related REO Mortgage Loan), at a
per annum rate
equal to the Mortgage Rate, (iii) all unreimbursed Advances
(including
Unliquidated Advances) and interest on Advances (other than
Unliquidated
Advances) at the Advance Rate with respect to such Mortgage Loan
(or, in the
case of an REO Property, the related REO Mortgage Loan) and (iv) to
the extent
funds on deposit in any applicable Escrow Accounts are not
sufficient therefor,
and to the extent not previously advanced by the applicable Master
Servicer, the
applicable Special Servicer or the Trustee, all currently due and
unpaid real
estate taxes and assessments, insurance premiums and, if
applicable, ground
rents and other amounts which were required to be deposited in any
Escrow
Account (but were not deposited) in respect of such Mortgaged
Property or REO
Property, as the case may be, over (B) 90% of the Appraised Value
(net of any
prior mortgage liens) of such Mortgaged Property or REO Property as
determined
by such Appraisal or internal valuation, as the case may be, plus
the full
amount of any escrows held by or on behalf of the Trustee as
security for the
Mortgage Loan (less the estimated amount of the obligations
anticipated to be
payable in the next twelve months to which such escrows relate).
With respect to
each Mortgage Loan that is cross-collateralized with any other
Mortgage Loan,
the value of each Mortgaged Property that is security for each
Mortgage Loan in
such cross-collateralized group, as well as the outstanding amounts
under each
such Mortgage Loan shall be taken into account when calculating
such Appraisal
Reduction. Each Appraisal or internal valuation for a Required
Appraisal Loan
shall be updated annually, for so long as an Appraisal Reduction
exists, from
the date of such Appraisal or internal valuation, and each
Appraisal (as defined
in the 2007-HQ11 Pooling and Servicing Agreement) or internal
valuation of the
Non-Trust Serviced Pari Passu Loan shall be updated as set forth in
the
2007-HQ11 Pooling and Servicing Agreement. In addition, the
Operating Adviser
may at any time request the applicable Special Servicer to obtain
(at the
Operating Adviser's expense) an updated Appraisal, with a
corresponding
adjustment to the amount of the Appraisal Reduction. The Appraisal
Reduction for
each Required Appraisal Loan will be recalculated based on
subsequent
Appraisals, internal valuations or updates. Any Appraisal Reduction
for any
Mortgage Loan shall be reduced to reflect any Realized Principal
Losses on the
Required Appraisal Loan. Each Appraisal Reduction will be reduced
to zero as of
the date the related Mortgage Loan is brought current under the
then current
terms of the Mortgage Loan for at least three consecutive months,
and no
Appraisal Reduction will exist as to any Mortgage Loan after it has
been paid in
full, liquidated, repurchased or otherwise disposed of. Any
Appraisal Reduction
in respect of the Non-Trust-Serviced Pari Passu Loan shall be
calculated by the
2007-HQ11 Master Servicer in accordance with and pursuant to the
terms of the
2007-HQ11 Pooling and Servicing Agreement.
"Appraised Value" means (i) with respect to any Mortgaged
Property
(other than the Mortgaged Property securing a Co-op Mortgage Loan
or the
Non-Trust Serviced Pari Passu Loan), the appraised value thereof
determined by
an Appraisal of the Mortgaged Property securing such Mortgage Loan
made by an
Independent appraiser selected by the General Master Servicer, the
NCB Master
Servicer or the General Special Servicer, as applicable or, in the
case of an
internal valuation performed by the General Special Servicer
pursuant to Section
6.9, the value of the Mortgaged Property determined by such
internal valuation,
and (ii) with respect to each Mortgaged Property securing a Co-op
Mortgage Loan,
the appraised value thereof determined by an Appraisal of the
Mortgaged Property
securing such Co-op Mortgage Loan made by an Independent appraiser
selected by
the NCB Master Servicer or the Co-op Special Servicer, as
applicable, or in the
case of an internal valuation performed by the Co-op Special
Servicer pursuant
to Section 6.9, the value of the Mortgaged Property determined by
such internal
valuation, each determined as if such property were operated as
a
cooperatively-owned multifamily residential building (generally
equaling the
gross sellout value of all cooperative units in such residential
cooperative
property (applying a discount as determined by the appraiser for
rent regulated
and rent controlled units) plus the amount of the underlying debt
encumbering
such residential cooperative property).
"ARD Loan" means the Mortgage Loan designated on the Mortgage
Loan
Schedule as Mortgage Loan No. 103.
"Assignment of Leases" means, with respect to any Mortgage Loan,
any
assignment of leases, rents and profits or equivalent instrument,
whether
contained in the related Mortgage or executed separately, assigning
to the
holder or holders of such Mortgage all of the related Mortgagor's
interest in
the leases, rents and profits derived from the ownership,
operation, leasing or
disposition of all or a portion of the related Mortgaged Property
as security
for repayment of such Mortgage Loan.
"Assignment of Mortgage" means an assignment of the Mortgage,
notice of
transfer or equivalent instrument, in recordable form, sufficient
under the laws
of the jurisdiction wherein the related Mortgaged Property is
located to reflect
the transfer of the Mortgage to the Trustee, which assignment,
notice of
transfer or equivalent instrument may be in the form of one or more
blanket
assignments covering the Mortgage Loans secured by Mortgaged
Properties located
in the same jurisdiction, if permitted by law.
"Assumed Scheduled Payment" means: (i) with respect to any
Balloon
Mortgage Loan for its Maturity Date (provided that such Mortgage
Loan has not
been paid in full, and no Final Recovery Determination or other
sale or
liquidation has occurred in respect thereof, on or before the end
of the
Collection Period in which such Maturity Date occurs) and for any
subsequent Due
Date therefor as of which such Mortgage Loan remains outstanding
and part of the
Trust, if no Scheduled Payment (other than the related delinquent
Balloon
Payment) is due for such Due Date, the scheduled monthly payment of
principal
and/or interest deemed to be due in respect thereof on such Due
Date equal to
the Scheduled Payment that would have been due in respect of such
Mortgage Loan
on such Due Date, if it had been required to continue to accrue
interest in
accordance with its terms, and to pay principal in accordance with
the
amortization schedule in effect immediately prior to, and without
regard to the
occurrence of, its most recent Maturity Date (as such may have been
extended in
connection with a bankruptcy or similar proceeding involving the
related
Mortgagor or a modification, waiver or amendment of such Mortgage
Loan granted
or agreed to by the applicable Master Servicer or the applicable
Special
Servicer pursuant to the terms hereof) and (ii) with respect to any
REO Mortgage
Loan for any Due Date therefor as of which the related REO Property
remains part
of the Trust, the scheduled monthly payment of principal and
interest deemed to
be due in respect thereof on such Due Date equal to the Scheduled
Payment (or,
in the case of a Balloon Mortgage Loan described in the preceding
clause of this
definition, the Assumed Scheduled Payment) that was due in respect
of the
related Mortgage Loan on the last Due Date prior to its becoming an
REO Mortgage
Loan.
"Authenticating Agent" means any authenticating agent serving in
such
capacity pursuant to Section 7.10.
"Authorized Officer" means any Person that may execute an
Officer's
Certificate on behalf of the Depositor.
"Available Advance Reimbursement Amount" has the meaning set forth
in
Section 4.6(a) hereof.
"Available Distribution Amount" means, with respect to any
Distribution
Date and the Mortgage Loans, an amount equal to the aggregate of
the following
amounts (a) all amounts on deposit in the Distribution Account as
of the
commencement of business on such Distribution Date that represent
payments and
other collections on or in respect of the Mortgage Loans and any
REO Properties
that were (x) received by a Master Servicer or the Special Servicer
through the
end of the related Collection Period (other than any portion
thereof that
constituted a portion of the Available Distribution Amount for a
prior
Distribution Date as described in clause (a)(y) below) or (y)
remitted by the
applicable Master Servicer on the related Master Servicer
Remittance Date
pursuant to Section 5.1(h), exclusive of (i) any such amounts that
were
deposited in the Distribution Account in error, (ii) amounts that
are payable or
reimbursable to any Person other than the Certificateholders
(including amounts
payable to the Master Servicers in respect of unpaid Master
Servicing Fees, the
Primary Servicers in respect of unpaid Primary Servicing Fees, the
Special
Servicers in respect of unpaid Special Servicer Compensation, the
Trustee in
respect of unpaid Trustee Fees or to the parties entitled thereto
in respect of
the unpaid Excess Servicing Fees), (iii) amounts that constitute
Prepayment
Premiums or Yield Maintenance Charges, (iv) if such Distribution
Date occurs
during January, other than in a leap year, or February of any year
(unless the
related Distribution Date is the final Distribution Date), the
Interest Reserve
Amounts with respect to Interest Reserve Loans deposited in the
Interest Reserve
Accounts, (v) Excess Interest and (vi) Scheduled Payments collected
but due on a
Due Date subsequent to the related Collection Period (other than
any portion
thereof described in clause (a)(y) above) and (b) if and to the
extent not
already among the amounts described in clause (a), (i) the
aggregate amount of
any P&I Advances made by a Master Servicer or the Trustee for
such Distribution
Date pursuant to Section 4.1 and/or Section 4.3, (ii) the aggregate
amount of
any Compensating Interest payments made by the Master Servicers for
such
Distribution Date pursuant to the terms hereof, and (iii) if a
Distribution Date
occurs in March of any year, commencing March 2007 (or February if
the related
Distribution Date is the final Distribution Date) or if a Maturity
Date or
Principal Prepayment falls on a January or February of any year,
the aggregate
of the Interest Reserve Amounts then held on deposit in the
Interest Reserve
Accounts in respect of the related Interest Reserve Loan or
Interest Reserve
Loans. For purposes of the definition of "Available Distribution
Amount," the
Scheduled Payments and Principal Prepayments referred to in the
proviso in
Section 5.2(b) shall be deemed to have been collected in the prior
Collection
Period.
"Balloon Mortgage Loan" means a Mortgage Loan that provides for
Scheduled Payments based on an amortization schedule that is
significantly
longer than its term to maturity and that is expected to have a
remaining
principal balance equal to or greater than 5% of its original
principal balance
as of its stated maturity date, unless prepaid prior thereto.
"Balloon Payment" means, with respect to any Balloon Mortgage Loan,
the
Scheduled Payment payable on the Maturity Date of such Mortgage
Loan.
"Banking Day" means any day on which commercial banks are open
for
business (including dealings in foreign exchange and foreign
currency) in
London, England.
"Bankruptcy Loss" means a loss arising from a proceeding under
the
United States Bankruptcy Code or any other similar state law or
other proceeding
with respect to the Mortgagor of, or Mortgaged Property under, a
Mortgage Loan,
including, without limitation, any Deficient Valuation Amount or
losses, if any,
resulting from any Debt Service Reduction Amount for the month in
which the
related Remittance Date occurs.
"Base Interest Fraction" means, with respect to any Principal
Prepayment of any Mortgage Loan that provides for payment of a
Prepayment
Premium or Yield Maintenance Charge, and with respect to any Class
of
Certificates, a fraction (A) whose numerator is the greater of (x)
zero and (y)
the difference between (i) the Pass-Through Rate on that Class of
Certificates
and (ii) the Discount Rate used in calculating the Prepayment
Premium or Yield
Maintenance Charge with respect to the Principal Prepayment (or the
current
Discount Rate if not used in such calculation) and (B) whose
denominator is the
difference between (i) the Mortgage Rate on the related Mortgage
Loan or, with
respect to a Specially Designated Co-op Mortgage Loan, the Net
Mortgage Rate on
such Specially Designated Co-op Mortgage Loan and (ii) the Discount
Rate used in
calculating the Prepayment Premium or Yield Maintenance Charge with
respect to
that Principal Prepayment (or the current Discount Rate if not used
in such
calculation), provided, however, that under no circumstances will
the Base
Interest Fraction be greater than one. If the Discount Rate
referred to above is
greater than or equal to the Mortgage Rate on the related Mortgage
Loan (with
respect to the Co-op Mortgage Loans, the Net Mortgage Rate on the
related
Mortgage Loan), then the Base Interest Fraction shall equal zero;
provided,
however, that if the Discount Rate referred to above is greater
than or equal to
the Mortgage Rate on the related Mortgage Loan (with respect to the
Co-op
Mortgage Loans, the Net Mortgage Rate on the related Mortgage
Loan), but is less
than the Pass-Through Rate on that Class of Certificates, then the
Base Interest
Fraction shall be equal to 1.0.
"Book-Entry Certificates" means certificates evidencing a
beneficial
interest in a Class of Certificates, ownership and transfer of
which shall be
made through book entries as described in Section 3.7; provided
that after the
occurrence of a condition whereupon book-entry registration and
transfer are no
longer authorized and Definitive Certificates are to be issued to
the
Certificate Owners, such certificates shall no longer be
"Book-Entry
Certificates."
"Business Day" means any day other than a Saturday, a Sunday or a
day
on which banking institutions in the states where the Certificate
Account,
Distribution Account, Trustee, a Master Servicer, a Primary
Servicer or a
Special Servicer are located and are authorized or obligated by law
or executive
order to remain closed. Upon the request of any party to this
Agreement or the
Operating Adviser, the Trustee, the Paying Agent, each Master
Servicer, each
Special Servicer and each Primary Servicer shall provide such party
a list of
the legal holidays observed by such entity; provided that each
Primary Servicer
shall be required to provide the Operating Adviser and the Master
Servicers on
or before the first day of January of each calendar year with a
list of each day
that will not be a "Business Day" in the jurisdiction of such
Primary Servicer
during such calendar year.
"Cash Liquidation" means, as to any Defaulted Mortgage Loan other
than
a Mortgage Loan with respect to which the related Mortgaged
Property became REO
Property, the sale of such Defaulted Mortgage Loan. Each Master
Servicer shall
maintain records in accordance with the Servicing Standard (and, in
the case of
Specially Serviced Mortgage Loans, based on the written reports
with respect to
such Cash Liquidation delivered by the applicable Special Servicer
to the
applicable Master Servicer), of each Cash Liquidation.
"Category 1 Requests" has the meaning set forth in the Primary
Servicing Agreements for the SunTrust Loans.
"CERCLA" means the Comprehensive Environmental Response,
Compensation
and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et
seq.).
"Certificate Account" means one or more separate accounts
established
and maintained by each Master Servicer (or any Sub-Servicer or
Primary Servicer
on behalf of the applicable Master Servicer) pursuant to Section
5.1(a), each of
which shall be an Eligible Account.
"Certificate Balance" means, with respect to any Certificate
(other
than the Class X Certificates, the Class X-Y Certificates, the
Class EI
Certificates and the Residual Certificates) or Interest (other than
the Group
X-Y REMIC I Regular Interests and the REMIC II Regular Interest
X-Y) as of any
Distribution Date, the maximum specified dollar amount of principal
to which the
Holder thereof is then entitled hereunder, such amount being equal
to the
initial principal amount set forth on the face of such Certificate
(in the case
of a Certificate), or as ascribed thereto in the Preliminary
Statement hereto
(in the case of an Interest), minus (A)(i) the amount of all
principal
distributions previously made with respect to such Certificate
pursuant to
Section 6.5(a) or deemed to have been made with respect to such
Interest
pursuant to Section 6.2(a) or Section 6.3(a), as the case may be
and (ii) all
Realized Losses allocated or deemed to have been allocated to such
Interest or
Certificate pursuant to Section 6.6, plus (B) an amount equal to
the amounts
identified in clause (I)(C) of the definition of Principal
Distribution Amount,
such increases to be allocated to the Principal Balance
Certificates or
Interests in sequential order (i.e., to the most senior Class
first), in each
case up to the amount of Realized Losses previously allocated
thereto and not
otherwise reimbursed hereunder.
"Certificate Owner" means, with respect to a Book-Entry
Certificate,
the Person who is the beneficial owner of such Book-Entry
Certificate, as may be
reflected on the books of the Clearing Agency, or on the books of a
Person
maintaining an account with such Clearing Agency (directly or as an
indirect
participant, in accordance with the rules of such Clearing
Agency).
"Certificate Register" has the meaning provided in Section 3.2.
"Certificate Registrar" means the registrar appointed pursuant
to
Section 3.2 and initially shall be the Trustee.
"Certificateholders" has the meaning provided in the definition
of
"Holder."
"Certificates" means, collectively, the REMIC III Certificates,
the
Class EI Certificates, the Class R-I Certificates, the Class R-II
Certificates
and the Class R-III Certificates.
"Certification Parties" has the meaning set forth in Section
13.6.
"Certifying Person" has the meaning set forth in Section 13.6.
"Class" means, with respect to the REMIC I Regular Interests, REMIC
II
Regular Interests, REMIC III Certificates and Class EI
Certificates, any class
of such Certificates or Interests.
"Class A Certificates" means the Class A-1 Certificates, Class
A-1A
Certificates, Class A-2 Certificates, Class A-3 Certificates and
Class A-4
Certificates, collectively.
"Class A-1 Certificates," "Class A-1A Certificates," "Class A-2
Certificates," "Class A-3 Certificates," "Class A-4 Certificates,"
"Class A-M
Certificates," "Class A-J Certificates," "Class X Certificates,"
"Class X-Y
Certificates," "Class B Certificates," "Class C Certificates,"
"Class D
Certificates," "Class E Certificates," "Class F Certificates,"
"Class G
Certificates," "Class H Certificates," "Class J Certificates,"
"Class K
Certificates," "Class L Certificates," "Class M Certificates,"
"Class N
Certificates," "Class O Certificates," "Class P Certificates,"
"Class EI
Certificates," "Class R-I Certificates," "Class R-II Certificates,"
or "Class
R-III Certificates" mean the Certificates designated as "Class
A-1," "Class
A-1A," "Class A-2," "Class A-3," "Class A-4," "Class A-M," "Class
A-J," Class
X," "Class X-Y," "Class B," "Class C," "Class D," "Class E," "Class
F," "Class
G," "Class H," "Class J," "Class K," "Class L," "Class M," "Class
N," "Class O,"
"Class P," "Class EI," "Class R-I," "Class R-II" and "Class
R-III,"
respectively, on the face thereof, in substantially the form
attached hereto as
Exhibits A-1 through A-27.
"Class A-1 Component" means a component of the beneficial interest
in
REMIC III evidenced by the Class A-1 Certificates, which component
represents a
Component Notional Amount equal to the Certificate Balance of the
REMIC II
Regular Interest A-1.
"Class A-1A Component" means a component of the beneficial interest
in
REMIC III evidenced by the Class A-1A Certificates, which component
represents a
Component Notional Amount equal to the Certificate Balance of the
REMIC II
Regular Interest A-1A.
"Class A-2 Component" means a component of the beneficial interest
in
REMIC III evidenced by the Class A-2 Certificates, which component
represents a
Component Notional Amount equal to the Certificate Balance of the
REMIC II
Regular Interest A-2.
"Class A-3 Component" means a component of the beneficial interest
in
REMIC III evidenced by the Class A-3 Certificates, which component
represents a
Component Notional Amount equal to the Certificate Balance of the
REMIC II
Regular Interest A-3.
"Class A-4 Component" means a component of the beneficial interest
in
REMIC III evidenced by the Class A-4 Certificates, which component
represents a
Component Notional Amount equal to the Certificate Balance of the
REMIC II
Regular Interest A-4.
"Class A-M Component" means a component of the beneficial interest
in
REMIC III evidenced by the Class A-M Certificates, which component
represents a
Component Notional Amount equal to the Certificate Balance of the
REMIC II
Regular Interest A-M.
"Class A-J Component" means a component of the beneficial interest
in
REMIC III evidenced by the Class A-J Certificates, which component
represents a
Component Notional Amount equal to the Certificate Balance of the
REMIC II
Regular Interest A-J.
"Class B Component" means a component of the beneficial interest
in
REMIC III evidenced by the Class B Certificates, which component
represents a
Component Notional Amount equal to the Certificate Balance of the
REMIC II
Regular Interest B.
"Class C Component" means a component of the beneficial interest
in
REMIC III evidenced by the Class C Certificates, which component
represents a
Component Notional Amount equal to the Certificate Balance of the
REMIC II
Regular Interest C.
"Class D Component" means a component of the beneficial interest
in
REMIC III evidenced by the Class D Certificates, which component
represents a
Component Notional Amount equal to the Certificate Balance of the
REMIC II
Regular Interest D.
"Class E Component" means a component of the beneficial interest
in
REMIC III evidenced by the Class E Certificates, which component
represents a
Component Notional Amount equal to the Certificate Balance of the
REMIC II
Regular Interest E.
"Class EI Grantor Trust" means that portion of the Trust consisting
of
Excess Interest and the Excess Interest Sub-account.
"Class F Component" means a component of the beneficial interest
in
REMIC III evidenced by the Class F Certificates, which component
represents a
Component Notional Amount equal to the Certificate Balance of the
REMIC II
Regular Interest F.
"Class G Component" means a component of the beneficial interest
in
REMIC III evidenced by the Class G Certificates, which component
represents a
Component Notional Amount equal to the Certificate Balance of the
REMIC II
Regular Interest G.
"Class H Component" means a component of the beneficial interest
in
REMIC III evidenced by the Class H Certificates, which component
represents a
Component Notional Amount equal to the Certificate Balance of the
REMIC II
Regular Interest H.
"Class J Component" means a component of the beneficial interest
in
REMIC III evidenced by the Class J Certificates, which component
represents a
Component Notional Amount equal to the Certificate Balance of the
REMIC II
Regular Interest J.
"Class K Component" means a component of the beneficial interest
in
REMIC III evidenced by the Class K Certificates, which component
represents a
Component Notional Amount equal to the Certificate Balance of the
REMIC II
Regular Interest K.
"Class L Component" means a component of the beneficial interest
in
REMIC III evidenced by the Class L Certificates, which component
represents a
Component Notional Amount equal to the Certificate Balance of the
REMIC II
Regular Interest L.
"Class M Component" means a component of the beneficial interest
in
REMIC III evidenced by the Class M Certificates, which component
represents a
Component Notional Amount equal to the Certificate Balance of the
REMIC II
Regular Interest M.
"Class N Component" means a component of the beneficial interest
in
REMIC III evidenced by the Class N Certificates, which component
represents a
Component Notional Amount equal to the Certificate Balance of the
REMIC II
Regular Interest N.
"Class O Component" means a component of the beneficial interest
in
REMIC III evidenced by the Class O Certificates, which component
represents a
Component Notional Amount equal to the Certificate Balance of the
REMIC II
Regular Interest O.
"Class P Component" means a component of the beneficial interest
in
REMIC III evidenced by the Class P Certificates, which component
represents a
Component Notional Amount equal to the Certificate Balance of the
REMIC II
Regular Interest P.
"Class EI Grantor Trust" means that portion of the Trust consisting
of
Excess Interest and the Excess Interest Sub-account.
"Class X Notional Amount" means, with respect to the Class X
Certificates and any date of determination, the aggregate of the
outstanding
Certificate Balances of the Principal Balance Certificates.
"Class X Strip Rate" means, with respect to any Class of Components
for
any Distribution Date, a rate per annum equal to (i) the Weighted
Average REMIC
I Net Mortgage Rate for such Distribution Date, minus (ii) the
Pass-Through Rate
for the Corresponding Certificates.
"Class X-Y Interest Amount" means, with respect to any
Distribution
Date and the related Interest Accrual Period, interest accrued on
the Class X-Y
Notional Amount during the related Interest Accrual Period at a
rate equal to
one twelfth of a per annum rate equal to the Weighted Average Class
X-Y Strip
Rate.
"Class X-Y Notional Amount" means, with respect to any
Distribution
Date, the aggregate of the Principal Balances of the Specially
Designated Co-op
Mortgage Loans (or any successor REO Mortgage Loans), reduced by
any Advances of
principal on such Specially Designated Co-op Mortgage Loans (or any
successor
REO Mortgage Loans) and losses on those Specially Designated Co-op
Mortgage
Loans previously allocated to the Certificateholders.
"Class X-Y Strip Rate" means, with respect to any Specially
Designated
Co-op Mortgage Loan (and any successor REO Mortgage Loan with
respect thereto),
for any Distribution Date, a rate per annum equal to either: (1) if
such
Mortgage Loan accrues interest on a 30/360 basis, 0.10%; and (2) if
such
Mortgage Loan accrues interest on a basis other than that of a
30/360 basis, the
product of (a) 0.10%, multiplied by (b) a fraction, the numerator
of which is
the number of days in the Interest Accrual Period that corresponds
to such
Distribution Date, and the denominator of which 30.
"Clearing Agency" means an organization registered as a
"clearing
agency" pursuant to Section 17A of the 1934 Act, which initially
shall be the
Depository.
"Clearstream" means Clearstream Banking Luxembourg, societe
anonyme.
"Closing Date" means on or about March 29, 2007.
"CMSA" means the Commercial Mortgage Securities Association.
"CMSA Advance Recovery Report" means a report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Advance Recovery Report" available as of the Closing Date on the
CMSA Website,
or such other form for the presentation of such information and
containing such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally.
"CMSA Bond Level File" means a report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "Bond
Level File" available as of the Closing Date on the CMSA Website,
or such other
form for the presentation of such information and containing such
additional
information as may from time to time be approved by the CMSA for
commercial
mortgage securities transactions generally and, insofar as it
requires the
presentation of information in addition to that called for by the
form of the
"Bond Level File" available as of the Closing Date on the CMSA
Website, is
reasonably acceptable to the Trustee, as applicable.
"CMSA Collateral Summary File" means a report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Collateral Summary File" available as of the Closing Date on the
CMSA Website,
or such other form for the presentation of such information and
containing such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally and, insofar
as it
requires the presentation of information in addition to that called
for by the
form of the "Collateral Summary File" available as of the Closing
Date on the
CMSA Website, is reasonably acceptable to the Trustee, as
applicable.
"CMSA Comparative Financial Status Report" means a report
substantially
in the form of, and containing the information called for in, the
downloadable
form of the "Comparative Financial Status Report" available as of
the Closing
Date on the CMSA Website, or such other form for the presentation
of such
information and containing such additional information as may from
time to time
be approved by the CMSA for commercial mortgage securities
transactions
generally and, insofar as it requires the presentation of
information in
addition to that called for by the form of the "Comparative
Financial Status
Report" available as of the Closing Date on the CMSA Website, is
reasonably
acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Delinquent Loan Status Report" means a report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Delinquent Loan Status Report" available as of the Closing
Date on the
CMSA Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions generally
and, insofar
as it requires the presentation of information in addition to that
called for by
the form of the "Delinquent Loan Status Report" available as of the
Closing Date
on the CMSA Website, is reasonably acceptable to the Master
Servicer or the
Special Servicer, as applicable.
"CMSA Financial File" means a data file substantially in the form
of,
and containing the information called for in, the downloadable form
of the
"Financial File" available as of the Closing Date on the CMSA
Website, or such
other form for the presentation of such information and containing
such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally and, insofar
as it
requires the presentation of information in addition to that called
for by the
form of the "Financial File" available as of the Closing Date on
the CMSA
Website, is reasonably acceptable to the Master Servicer or the
Special
Servicer, as applicable.
"CMSA Historical Liquidation Report" means a report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Historical Liquidation 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
and, insofar
as it requires the presentation of information in addition to that
called for by
the form of the "Historical Liquidation Report" available as of the
Closing Date
on the CMSA Website, is reasonably acceptable to the Master
Servicer or the
Special Servicer, as applicable.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report"
means a report substantially in the form of, and containing the
information
called for in, the downloadable form of the "Historical Loan
Modification and
Corrected Mortgage Loan Report" available as of the Closing Date on
the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions generally
and, insofar
as it requires the presentation of information in addition to that
called for by
the form of the "Historical Loan Modification and Corrected
Mortgage Loan
Report" available as of the Closing Date on the CMSA Website, is
reasonably
acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Loan Level Reserve/LOC Report" means a report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Loan Level Reserve/LOC Report" available as of the Closing
Date on the
CMSA Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions generally
and, insofar
as it requires the presentation of information in addition to that
called for by
the form of the "Loan Level Reserve/LOC Report" available as of the
Closing Date
on the CMSA Website, is reasonably acceptable to the Master
Servicer or the
Special Servicer, as applicable.
"CMSA Loan Periodic Update File" means a monthly data file
substantially in the form of, and containing the information called
for in, the
downloadable form of the "Loan Periodic Update File" available as
of the Closing
Date on the CMSA Website, or such other form for the presentation
of such
information and containing such additional information as may from
time to time
be recommended by the CMSA for commercial mortgage-backed
securities
transactions generally and, insofar as it requires the presentation
of
information in addition to that called for by the form of the "Loan
Periodic
Update File" available as of the Closing Date on the CMSA Website,
is reasonably
acceptable to the Master Servicer, the Special Servicer or the
Trustee, as
applicable.
"CMSA Loan Setup File" means a report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "Loan
Setup File" available as of the Closing Date on the CMSA Website,
or such other
form for the presentation of such information and containing such
additional
information as may from time to time be approved by the CMSA for
commercial
mortgage securities transactions generally and, insofar as it
requires the
presentation of information in addition to that called for by the
form of the
"Loan Setup File" available as of the Closing Date on the CMSA
Website, is
reasonably acceptable to the Master Servicer, the Special Servicer
or the
Trustee, as applicable.
"CMSA NOI Adjustment Worksheet" means a report substantially in
the
form of, and containing the information called for in, the
downloadable form of
the "NOI Adjustment Worksheet" available as of the Closing Date on
the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions generally
and, insofar
as it requires the presentation of information in addition to that
called for by
the form of the "NOI Adjustment Work" available as of the Closing
Date on the
CMSA Website, is reasonably acceptable to the Master Servicer or
the Special
Servicer, as applicable.
"CMSA Operating Statement Analysis Report" means a report
substantially
in the form of, and containing the information called for in, the
downloadable
form of the "Operating Statement Analysis Report" available as of
the Closing
Date on the CMSA Website, or such other form for the presentation
of such
information and containing such additional information as may from
time to time
be approved by the CMSA for commercial mortgage securities
transactions
generally and, insofar as it requires the presentation of
information in
addition to that called for by the form of the "Operating Statement
Analysis
Report" available as of the Closing Date on the CMSA Website, is
reasonably
acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Property File" means a data file substantially in the form
of,
and containing the information called for in, the downloadable form
of the
"Property File" available as of the Closing Date on the CMSA
Website, or such
other form for the presentation of such information and containing
such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally and, insofar
as it
requires the presentation of information in addition to that called
for by the
form of the "Property File" available as of the Closing Date on the
CMSA
Website, is reasonably acceptable to the Master Servicer or the
Special
Servicer, as applicable.
"CMSA Reconciliation of Funds" means a report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Reconciliation of Funds" available as of the Closing Date on the
CMSA Website,
or such other form for the presentation of such information and
containing such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally and, insofar
as it
requires the presentation of information in addition to that called
for by the
form of the "Reconciliation of Funds" available as of the Closing
Date on the
CMSA Website, is reasonably acceptable to the Trustee.
"CMSA REO Status Report" means a report substantially in the form
of,
and containing the information called for in, the downloadable form
of the "REO
Status Report" available as of the Closing Date on the CMSA
Website, or such
other form for the presentation of such information and containing
such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally and, insofar
as it
requires the presentation of information in addition to that called
for by the
form of the "REO Status Report" available as of the Closing Date on
the CMSA
Website, is reasonably acceptable to the Master Servicer or the
Special
Servicer, as applicable.
"CMSA Reports" means the Restricted Servicer Reports and the
Unrestricted Servicer Reports, collectively, as the forms thereof
are modified,
expanded or otherwise changed from time to time by the CMSA. With
respect to new
reports created and approved by the CMSA, such new reports will be
used in this
transaction (provided, however, that insofar as any such new report
requires the
presentation of information in addition to that called for by the
current CMSA
reports, such new report is reasonably acceptable to the Master
Servicer or the
Special Servicer, as applicable) and the Depositor shall direct the
Trustee as
to whether such reports will be Restricted Servicer Reports or
Unrestricted
Servicer Reports. The Trustee shall provide the Master Servicer and
Special
Servicer with a copy of such direction within two Business Days
after its
receipt. In the case of each Mortgaged Property securing a Co-op
Mortgage Loan,
the respective files and reports comprising the CMSA Reports shall
present the
Projected Net Cash Flow for such Mortgaged Property and the Debt
Service
Coverage Ratio for such Co-op Mortgage Loan, as such terms apply to
residential
cooperative properties, if and to the extent that such file or
report requires
preparation and/or submission of data concerning net cash flow or
debt service
coverage.
"CMSA Servicer Watch List" means a report substantially in the form
of,
and containing the information called for in, the downloadable form
of "Servicer
Watch List" available as of the Closing Date on the CMSA Website,
or such other
form for the presentation of such information and containing such
additional
information as may from time to time be approved by the CMSA for
commercial
mortgage securities transactions generally and, insofar as it
requires the
presentation of information in addition to that called for by the
form of the
"Servicer Watch List" available as of the Closing Date on the CMSA
Website, is
reasonably acceptable to the Master Servicer or the Special
Servicer, as
applicable; provided, however, that, notwithstanding the foregoing,
the NCB
Master Servicer shall not be required to include a Co-op Mortgage
Loan on the
Servicer Watch List on account of the Debt Service Coverage Ratio
of such Co-op
Mortgage Loan, unless such Debt Service Coverage Ratio shall fall
below 0.90x
(for purposes of the calculation of the Debt Service Coverage Ratio
of a Co-op
Mortgage Loan for this definition only, the Projected Net Cash Flow
of the
related Mortgaged Property shall be adjusted to reflect the actual
expenses
incurred by the Mortgagor).
"CMSA Special Servicer Loan File" means a report substantially in
the
form of, and containing the information called for in, the
downloadable form of
the "Special Servicer Loan File" available as of the Closing Date
on the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions generally
and, insofar
as it requires the presentation of information in addition to that
called for by
the form of the "Special Servicer Loan File" available as of the
Closing Date on
the CMSA Website, is reasonably acceptable to the Special Servicer,
as
applicable.
"CMSA Total Loan Report" means a report substantially in the form
of,
and containing the information called for in, the downloadable form
of the
"Total Loan Report" available as of the Closing Date on the CMSA
Website, or
such other form for the presentation of such information and
containing such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally, and is
reasonably
acceptable to the Master Servicers and the Special Servicer.
"CMSA Website" means the CMSA's website located at "www.cmbs.org"
or
such other primary website as the CMSA may establish for
dissemination of its
report forms.
"Co-Lender Agreement" means the RREEF Portfolio Co-Lender
Agreement.
"Co-op Mortgage Loan" means any Mortgage Loan that, as of the date
it
is first included in the Trust, is secured by a Mortgage that
encumbers a
residential cooperative property, as identified on Schedule IV
hereto.
"Co-op Special Servicer" means National Consumer Cooperative Bank,
or
any successor Special Servicer as herein provided, including
without limitation
any successor Special Servicer appointed pursuant to Section 9.39
hereof.
"Co-op Trust Assets" means the Co-op Mortgage Loans, any REO
Properties
acquired by the Trust with respect to the Co-op Mortgage Loans and
any and all
other related assets of the Trust.
"Code" means the Internal Revenue Code of 1986, as amended, any
successor statutes thereto, and applicable U.S. Department of
Treasury
regulations issued pursuant thereto in temporary or final form and
proposed
regulations thereunder, to the extent that, by reason of their
proposed
effective date, such proposed regulations would apply to the
Trust.
"Collection Period" means, with respect to any Distribution Date,
the
period beginning on the day after the Determination Date in the
month preceding
the month of such Distribution Date (or in the case of the first
Distribution
Date, the Cut-Off Date) and ending on the Determination Date in the
month in
which the Distribution Date occurs.
"Commission" means the Securities and Exchange Commission.
"Compensating Interest" means, with respect to any Distribution
Date
and each Master Servicer, an amount equal to the excess of (A)
Prepayment
Interest Shortfalls incurred in respect of the Mortgage Loans
serviced by such
Master Servicer resulting from Principal Prepayments on such
Mortgage Loans (but
not including the Non-Trust Serviced Pari Passu Loan) during the
related
Collection Period, over (B) the aggregate of the Prepayment
Interest Excesses
received in respect of the Mortgage Loans serviced by such Master
Servicer
resulting from Principal Prepayments on such Mortgage Loan (but not
including
the Non-Trust Serviced Pari Passu Loan) during the same related
Collection
Period. Notwithstanding the foregoing, such Compensating Interest
shall not (i)
exceed the portion of the aggregate Master Servicing Fee accrued at
a rate per
annum equal to 2 basis points for the related Collection Period
calculated in
respect of such Master Servicer's Mortgage Loans, including REO
Mortgage Loans
(but not including the Non-Trust Serviced Pari Passu Loan), if such
Master
Servicer applied the subject Principal Prepayment in accordance
with the terms
of the related Mortgage Loan documents; and (ii) be required to be
paid on any
Prepayment Interest Shortfalls incurred in respect of any Specially
Serviced
Mortgaged Loans.
"Component" means each of the Class A-1 Component, Class A-1A
Component, Class A-2 Component, Class A-3 Component, Class A-4
Component, Class
A-M Component, Class A-J Component, Class B Component, Class C
Component, Class
D Component, Class E Component, Class F Component, Class G
Component, Class H
Component, Class J Component, Class K Component, Class L Component,
Class M
Component, Class N Component, Class O Component and Class P
Component.
"Component Notional Amount" means with respect to each Component
and
any date of determination, an amount equal to the then Certificate
Balance of
its Corresponding REMIC II Regular Interest.
"Condemnation Proceeds" means any awards resulting from the full
or
partial condemnation or any eminent domain proceeding or any
conveyance in lieu
or in anticipation thereof with respect to a Mortgaged Property by
or to any
governmental, quasi-governmental authority or private entity with
condemnation
powers (other than amounts to be applied to the restoration,
preservation or
repair of such Mortgaged Property or released to the related
Mortgagor in
accordance with the terms of the Mortgage Loan. With respect to the
mortgaged
properties securing the Non-Trust Serviced Pari Passu Loan, the
Condemnation
Proceeds will include only the portion of such net proceeds that is
payable to
the holder of the Non-Trust Serviced Pari Passu Loan pursuant to
the 2007-HQ11
Pooling and Servicing Agreement.
"Controlling Class" means the most subordinate Class of REMIC
Regular
Certificates outstanding at any time of determination; provided
that, if the
aggregate Certificate Balance of such Class is less than 25% of the
initial
Certificate Balance of such Class as of the Closing Date, the
Controlling Class
shall be the next most subordinate Class of REMIC Regular
Certificates
outstanding. As of the Closing Date, the Controlling Class will be
the Class P
Certificates.
"Controlling Person" means, with respect to any Person, any
other
Person who "controls" such Person within the meaning of the 1933
Act.
"Corporate Trust Office" means, with respect to the presentment
and
surrender of Certificates for the final distribution thereon or the
presentment
and surrender of Certificates for any other purpose or the transfer
of
Certificates, the principal corporate trust office of the
Certificate Registrar
and Paying Agent (which is presently located at 1 Federal Street,
3rd Floor,
Boston, Massachusetts 02110, Attention: Morgan Stanley Capital I
Inc., Series
2007-IQ13), or at such other address as the Trustee, Certificate
Registrar and
Paying Agent may designate from time to time by notice to the
Certificateholders, the Depositor, the Trustee, the Master
Servicers and the
Special Servicers).
"Corresponding Certificate" means the Class of Certificates as
set
forth in the Preliminary Statement with respect to any
Corresponding Component
or any Corresponding REMIC II Regular Interest.
"Corresponding Component" means the Component as set forth in
the
Preliminary Statement with respect to any Corresponding Certificate
or any
Corresponding REMIC II Regular Interest.
"Corresponding REMIC I Regular Interest" means, with respect to
each
Mortgage Loan, the REMIC I Regular Interest having an initial
Certificate
Balance (in the case of the Group PB REMIC I Regular Interests) or
initial
Notional Amount (in the case of the Group X-Y REMIC I Regular
Interests), equal
to the Principal Balance of such Mortgage Loan outstanding as of
the Cut-Off
Date, after taking into account all principal and interest payments
made or due
prior to the Cut-Off Date.
"Corresponding REMIC II Regular Interest" means the REMIC II
Regular
Interest as defined in the Preliminary Statement with respect to
any Class of
Corresponding Certificates or any Corresponding Component.
"Cross-Collateralized Loan" has the meaning set forth in Section
2.3(a)
hereof.
"Custodian" means the Trustee or any Person who is appointed by
the
Trustee at any time as custodian pursuant to Section 7.9 and who is
unaffiliated
with the Depositor and each Seller and satisfies the eligibility
requirements of
the Trustee as set forth in Section 7.5.
"Customer" means a broker, dealer, bank, other financial
institution or
other Person for whom the Clearing Agency effects book-entry
transfers and
pledges of securities deposited with the Clearing Agency.
"Cut-Off Date" means the end of business on March 1, 2007. The
Cut-Off
Date for any Mortgage Loan that has a Due Date on a date other than
the first
day of each month shall be the end of business on March 1, 2007 and
Scheduled
Payments due in March 2007 with respect to Mortgage Loans not
having Due Dates
on the first of each month have been deemed received on March 1,
2007, not the
actual day on which such Scheduled Payments were due.
"Debt Service Coverage Ratio" means either (a) with respect to
any
Mortgage Loan (other than a Co-op Mortgage Loan), as of any date
of
determination, the ratio of (1) the annual, year-end net cash flow
of the
related Mortgaged Property or Mortgaged Properties, determined as
provided in
the NOI Adjustment Worksheet based on the most recent annual,
year-end operating
statements provided by the Mortgagor (or if no annual, year-end
operating
statements have been provided, based on such information provided
by the
Mortgagor, including without limitation rent rolls and other
unaudited financial
information, as the applicable Master Servicer shall determine in
accordance
with the Servicing Standard) to (2) the annualized amount of debt
service
payable on that Mortgage Loan or, in the case of Mortgage Loans
that are
interest-only, where periodic payments are interest-only for a
certain amount of
time after origination after which date the Mortgage Loan amortizes
principal
for the remaining term of the Mortgage Loan, the annualized amount
of debt
service that will be payable under the Mortgage Loan after the
beginning of the
amortization term of the Mortgage Loan, or (b) with respect to any
Co-op
Mortgage Loan, as of any date of determination, the ratio of (1)
the Projected
Net Cash Flow for the related Mortgaged Property on an annualized
basis to (2)
the annualized amount of debt service payable on that Co-op
Mortgage Loan.
"Debt Service Reduction Amount" means, with respect to a Due Date
and
the related Determination Date, the amount of the reduction of the
Scheduled
Payment which a Mortgagor is obligated to pay on such Due Date with
respect to a
Mortgage Loan as a result of any proceeding under bankruptcy law or
any similar
proceeding (other than a Deficient Valuation Amount); provided,
however, that in
the case of an amount that is deferred as a result of any such
proceeding, but
not forgiven, the amount of the reduction shall include only the
net present
value (calculated at the related Mortgage Rate) of the
reduction.
"Defaulted Mortgage Loan" means a Mortgage Loan that is in
default
under the terms of the applicable Mortgage Loan documentation and
for which any
applicable grace period has expired.
"Defeasance Collateral" means, with respect to any Defeasance
Loan,
"government securities" as defined in Section 2(a)(16) of the
Investment Company
Act of 1940 required to be pledged in lieu of prepayment pursuant
to the terms
thereof.
"Defeasance Loan" means any Mortgage Loan which requires or permits
the
related Mortgagor (or permits the holder of such Mortgage Loan to
require the
related Mortgagor) to pledge Defeasance Collateral to such holder
in lieu of
prepayment.
"Deficient Valuation" means, with respect to any Mortgage Loan
(other
than the Non-Trust Serviced Pari Passu Loan), a valuation by a
court of
competent jurisdiction of the Mortgaged Property relating to such
Mortgage Loan
in an amount less than the then outstanding indebtedness under such
Mortgage
Loan, which valuation results from a proceeding initiated under the
United
States Bankruptcy Code, as amended from time to time, and that
reduces the
amount the Mortgagor is required to pay under such Mortgage Loan.
With respect
to the Mortgaged Properties securing the Non-Trust Serviced Loan
Group, the pro
rata portion of the valuation allocable to the Non-Trust Serviced
Pari Passu
Loan pursuant to the terms of the 2007-HQ11 Pooling and Servicing
Agreement).
"Deficient Valuation Amount" means, with respect to each Mortgage
Loan,
the amount by which the total amount due with respect to such
Mortgage Loan or
Serviced Loan Group, as applicable (excluding interest not yet
accrued),
including the Principal Balance of such Mortgage Loan (or Serviced
Loan Group)
plus any accrued and unpaid interest thereon and any other amounts
recoverable
from the Mortgagor with respect thereto pursuant to the terms
thereof, is
reduced in connection with a Deficient Valuation.
"Definitive Certificates" means Certificates of any Class issued
in
definitive, fully registered, certificated form without interest
coupons.
"Deleted Mortgage Loan" means a Mortgage Loan which is repurchased
from
the Trust pursuant to the terms hereof or as to which one or more
Qualifying
Substitute Mortgage Loans are substituted.
"Depositor" means Morgan Stanley Capital I Inc., a Delaware
corporation, and its successors in interest.
"Depository" has the meaning set forth in Section 3.7(a).
"Depository Agreement" means the Blanket Letter of
Representations
dated the Closing Date between the Depositor and the
Depository.
"Determination Date" means (a), with respect to any Distribution
Date
and any of the Mortgage Loans other than NCB, FSB Loans, the
earlier of (i) the
10th day of the month in which such Distribution Date occurs or, if
such day is
not a Business Day, the immediately preceding Business Day, and
(ii) the 5th
Business Day prior to the related Distribution Date, commencing
April 9, 2007 or
(b) with respect to any Distribution Date and any of the NCB, FSB
Loans, the
earlier of (i) the 11th day of the month in which such Distribution
Date occurs
or, if such day is not a Business Day, the immediately preceding
Business Day
and (ii) the 4th Business Day prior to the related Distribution
Date, commencing
April 10, 2007.
"Directly Operate" means, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the
management of
such REO Property, the holding of such REO Property primarily for
sale to
customers (other than a sale of an REO Property pursuant to and in
accordance
with Section 9.15) or the performance of any construction work
thereon, in each
case other than through an Independent Contractor; provided,
however, that the
Trustee (or the applicable Special Servicer on behalf of the
Trustee) shall not
be considered to Directly Operate an REO Property solely because
the Trustee (or
the applicable Special Servicer on behalf of the Trustee)
establishes rental
terms, chooses tenants, enters into or renews leases, deals with
taxes and
insurance, or makes decisions as to repairs, tenant improvements or
capital
expenditures with respect to such REO Property (including, without
limitation,
construction activity to effect repairs or in connection with
leasing activity)
or undertakes any ministerial action incidental thereto.
"Discount Rate" means the rate which, when compounded monthly,
is
equivalent to the Treasury Rate when compounded semi-annually. The
"Treasury
Rate," unless otherwise set forth in the Mortgage Loan documents,
is the yield
calculated by the linear interpolation of the yields, as reported
in Federal
Reserve Statistical Release H.15--Selected Interest Rates under the
heading
"U.S. government securities/Treasury constant maturities" for the
week ending
prior to the date of the relevant principal prepayment, of U.S.
Treasury
constant maturities with a maturity date (one longer and one
shorter) most
nearly approximating the maturity date (or the Anticipated
Repayment Date, if
applicable) of the Mortgage Loan prepaid. If Release H.15 is no
longer
published, the applicable Master Servicer will select a comparable
publication
to determine the Treasury Rate.
"Disqualified Organization" means any of (i) the United States,
any
State or any political subdivision thereof, or any agency or
instrumentality of
any of the foregoing (other than an instrumentality which is a
corporation if
all of its activities are subject to tax and, except for FHLMC, a
majority of
its board of directors is not selected by any such governmental
unit), (ii) a
foreign government, international organization or any agency or
instrumentality
of either of the foregoing, (iii) an organization (except certain
farmers'
cooperatives described in Section 521 of the Code) which is exempt
from tax
imposed by Chapter 1 of the Code (unless such organization is
subject to the tax
imposed by Section 511 of the Code on unrelated business taxable
income), (iv)
rural electric and telephone cooperatives described in Section 1381
of the Code,
and (v) any other Person so designated by the Master Servicer based
upon an
Opinion of Counsel that the holding of an ownership interest in a
Residual
Certificate by such Person may cause any of the REMIC Pools, or any
Person
having an Ownership Interest in any Class of Certificates, other
than such
Person, to incur a liability for any federal tax imposed under the
Code that
would not otherwise be imposed but for the transfer of an ownership
interest in
a Residual Certificate to such Person. The terms "United States,"
"State" and
"international organization" shall have the meanings set forth in
Section 7701
of the Code or successor provisions.
"Distributable Certificate Interest" means, with respect to any
Distribution Date and any Class of Certificates or Interests, the
sum of (A)
Accrued Certificate Interest in respect of such Class or Interest,
reduced (to
not less than zero) by (i) any Net Aggregate Prepayment Interest
Shortfalls for
such Class of Certificates or Interests, allocated on such
Distribution Date to
such Class or Interest pursuant to Section 6.7, and (ii) Realized
Losses
allocated on such Distribution Date to reduce the Distributable
Certificate
Interest payable to such Class or Interest pursuant to Section 6.6,
plus (B) the
Unpaid Interest, plus (C) if the Aggregate Certificate Balance is
reduced
because of a diversion of principal in accordance with Section
5.2(a)(II)(iv),
and there is a subsequent recovery of amounts as described in
Section 6.6(c)(i),
then interest at the applicable Pass-Through Rate that would have
accrued and
been distributable with respect to the amount by which the
Aggregate Certificate
Balance was so reduced, which interest shall accrue from the date
that the
related Realized Loss is allocated through the end of the Interest
Accrual
Period related to the Distribution Date on which such amounts are
subsequently
recovered.
"Distribution Account" means the Distribution Account maintained by
the
Trustee, in accordance with the provisions of Section 5.3, which
account shall
be an Eligible Account.
"Distribution Date" means the 15th day of each month or, if such
day is
not a Business Day, the next succeeding Business Day, commencing
April 16, 2007.
"Due Date" means, with respect to a Mortgage Loan, the date on
which a
Scheduled Payment is first due without the application of grace
periods.
"Eligible Account" means an account (or accounts) that is any of
the
following: (i) maintained with a depository institution or trust
company whose
(A) commercial paper, short-term unsecured debt obligations or
other short-term
deposits are rated at least "F-1" by Fitch and "A-1" by S&P, if
the deposits are
to be held in the account for 30 days or less, or (B) long term
unsecured debt
obligations are rated at least "AA" or "A" (without regard to any
plus or minus)
by Fitch and "AA-" (or "A" (without regard to any plus or minus),
if the
short-term unsecured debt obligations are rated at least "A-1") by
S&P, if the
deposits are to be held in the account more than 30 days, (ii) a
segregated
trust account or accounts maintained with the corporate trust
department of a
federal or state chartered depository institution or trust company
that, in
either case, has trust powers, acting in its fiduciary capacity,
provided that
any state chartered depository institution or trust company is
subject to
regulation regarding fiduciary funds substantially similar to 12
C.F.R. Section
9.10(b), (iii) an account or accounts of a depository institution
acceptable to
the Rating Agencies, as evidenced by Rating Agency Confirmation
with respect to
the use of any such account as a Certificate Account or the
Distribution
Account, (iv) in the case of Escrow Accounts with respect to NCB,
FSB Loans, any
account maintained with NCB, FSB (provided that NCB, FSB has a
combined capital
and surplus of at least $40,000,000) or (v) any other account, the
use of which
would not, in and of itself, (A) cause a qualification, downgrade
or withdrawal
of any rating then assigned to any Class of Certificates by either
Rating Agency
and (B) be inconsistent with the requirements of FASB 140 or any
other
interpretations with respect thereto applicable to such
accounts.
Notwithstanding anything in the foregoing to the contrary, an
account shall not
fail to be an Eligible Account solely because it is maintained with
Wells Fargo
Bank, N.A., a wholly owned subsidiary of Wells Fargo & Co.,
provided that such
subsidiary's or its parent's (A) commercial paper, short-term
unsecured debt
obligations or other short-term deposits are at least "F-1" in the
case of Fitch
and "A-1" in the case of S&P, if the deposits are to be held in
the account for
30 days or less, or (B) long-term unsecured debt obligations are
rated at least
"AA" in the case of Fitch and "AA" (or "A" (without regard to any
plus or
minus), if the short-term unsecured debt obligations are rated at
least "A-1")
in the case of S&P, if the deposits are to be held in the
account for more than
30 days.
"Eligible Investments" means any one or more of the following
financial
assets or other property:
(i) direct obligations of, and obligations fully guaranteed as to
timely
payment of
principal and interest by, the United States of America, FNMA,
FHLMC or
any agency or instrumentality of the United States of America
the
obligations of which are backed by the full faith and credit of the
United
States of
America; provided that any obligation of FNMA or FHLMC, other
than
an
unsecured senior debt obligation of FNMA or FHLMC, shall be an
Eligible
Investment
only if Rating Agency Confirmation is obtained with respect to
such
investment;
(ii) demand or time
deposits in, unsecured certificates of deposit of,
money
market deposit accounts of, or bankers' acceptances issued by,
any
depository
institution or trust company (including the Trustee, the Master
Servicers,
the Special Servicers, or any Affiliate of the Trustee, a
Master
Servicer
or a Special Servicer, acting in its commercial capacity)
incorporated or organized under the laws of the United States of
America or
any State
thereof and subject to supervision and examination by federal
or
state
banking authorities, so long as the commercial paper or other
short-term
debt obligations of such depository institution or trust
company
are rated
"F-1" by Fitch and "A-1" (without regard to any plus or minus)
by
S&P or
the long-term unsecured debt obligations of such depository
institution or trust company have been assigned a rating by each
Rating
Agency at
least equal to "AA" by Fitch and "AA-" by S&P or its
equivalent
or, in
each case, if not rated by a Rating Agency, then such Rating
Agency
has issued
a Rating Agency Confirmation;
(iii) repurchase agreements or obligations with respect to any
security
described
in clause (i) above where such security has a remaining
maturity
of one year or less and
where such repurchase obligation has been entered
into with
a depository institution or trust company (acting as principal)
described
in clause (ii) above and where such repurchase obligation will
mature
prior to the Business Day preceding the next date upon which,
as
described
in this Agreement, such amounts are required to be withdrawn
from
a
Certificate Account and which meets the minimum rating requirement
for
such
entity described above (or for which Rating Agency Confirmation
is
obtained
with respect to such ratings);
(iv) debt obligations (other than stripped bonds or stripped
coupons)
bearing
interest or sold at a discount issued by any corporation
incorporated under the laws of the United States of America or any
state
thereof,
which securities are rated at least "AA" or its equivalent by
each
Rating
Agency, unless otherwise specified in writing by the Rating
Agency;
provided
that securities issued by any particular corporation will not
be
Eligible
Investments to the extent that investment therein will cause
the
then-outstanding principal amount of securities issued by such
corporation
and held
in a Certificate Account to exceed 5% of the sum of the
aggregate
Certificate Principal Balance of the Principal Balance Certificates
and the
aggregate
principal amount of all Eligible Investments in the Certificate
Account;
(v) commercial paper (including both non interest bearing
discount
obligations and interest bearing obligations payable on demand or
on a
specified
date not more than one year after the date of issuance thereof)
rated
"F-1+" by Fitch and "A-1" (without regard to any plus or minus) by
S&P
(or for
which Rating Agency Confirmation is obtained with respect to
such
ratings);
(vi) units of investment funds (including money market funds) that
are
rated in
the highest long term category by Fitch and "AAAm" by S&P (or
if
not rated
by any such Rating Agency, then such Rating Agency has issued a
Rating
Agency Confirmation);
(vii) guaranteed reinvestment agreements maturing within 365 days
or
less
issued by any bank, insurance company or other corporation whose
long
term
unsecured debt rating is not less than "AA" (or its equivalent)
by
Fitch and
S&P, or for which Rating Agency Confirmation is obtained
with
respect to
such ratings; provided that, with respect to S&P, such
agreements
state that
funds may be withdrawn at par without penalty;
(viii) any money market funds (including those managed or advised
by the
Trustee or
its Affiliates) that maintain a constant asset value and that
are
rated
"AAA" (or its equivalent) by Fitch (if so rated by Fitch) and
"AAAm"
or "AAAm
G" (or its equivalent) by S&P, and any other demand, money
market
or time
deposit, or any other obligation, security or investment, with
respect to
which Rating Agency Confirmation has been obtained; and
(ix) such other investments bearing interest or sold at a
discount,
earning a
return "in the nature of interest" within the meaning of
Treasury
Regulation
Section 1.860G-2(g)(1)(i) (as evidenced by an Opinion of
Counsel
delivered
to the Trustee by the applicable Master Servicer or Special
Servicer
at the applicable Master Servicer's or Special Servicer's
expense),
as are
acceptable to the Rating Agencies (as evidenced by Rating
Agency
Confirmation) and treated as "permitted investments" that are "cash
flow
investments" under Section 860G(a)(5) of the Code;
provided (A) such investment is held for a temporary period
pursuant to Section
1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is
payable by
the obligor in U.S. dollars, and (C) that no such instrument shall
be an
Eligible Investment (1) if such instrument evidences either (a) a
right to
receive only interest payments or only principal payments with
respect to the
obligations underlying such instrument or (b) a right to receive
both principal
and interest payments derived from obligations underlying such
instrument and
the principal and interest payments with respect to such instrument
provide a
yield to maturity of greater than 120% of the yield to maturity at
par of such
underlying obligations, or (2) if it may be redeemed at a price
below the
purchase price or (3) if it is not treated as a "permitted
investment" that is a
"cash flow investment" under Section 860G(a)(5) of the Code; and
provided,
further, that any such instrument shall have a maturity date no
later than the
date such instrument is required to be used to satisfy the
obligations under
this Agreement, and, in any event, shall not have a maturity in
excess of one
year; any such instrument must have a predetermined fixed dollar of
principal
due at maturity that cannot vary or change; if rated, the
obligation must not
have an "r" highlighter affixed to its rating; interest on any
variable rate
instrument shall be tied to a single interest rate index plus a
single fixed
spread (if any) and move proportionally with that index; and
provided, further,
that no amount beneficially owned by any REMIC Pool (including any
amounts
collected by the Master Servicers but not yet deposited in the
Certificate
Accounts) may be invested in investments treated as equity
interests for Federal
income tax purposes. No Eligible Investments shall be purchased at
a price in
excess of par. For the purpose of this definition, units of
investment funds
(including money market funds) shall be deemed to mature daily.
"Environmental Insurance Policy" shall mean, with respect to
any
Mortgage Loan or the related Mortgaged Property or REO Property,
any insurance
policy covering pollution conditions and/or other environmental
conditions that
is maintained from time to time in respect of such Mortgage Loan,
Mortgaged
Property or REO Property, as the case may be, for the benefit of,
among others,
the Trustee on behalf of the Certificateholders.
"Environmental Laws" means any and all federal, state and local
statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees,
permits, concessions, grants, franchises, licenses, agreements or
other
governmental restrictions, now or hereafter in effect, relating to
health or the
environment or to emissions, discharges or releases of chemical
substances,
including, without limitation, any and all pollutants,
contaminants, petroleum
or petroleum products, asbestos or asbestos-containing
materials,
polychlorinated biphenyls, urea-formaldehyde insulation, radon,
industrial,
toxic or hazardous substances or wastes, into the environment,
including,
without limitation, ambient air, surface water, ground water or
land, or
otherwise relating to the manufacture, processing, distribution,
use, labeling,
registration, treatment, storage, disposal, transport or handling
of any of the
foregoing substances or wastes or the clean-up or other remediation
thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as
amended.
"Escrow Account"
means an account established by or on behalf of the
Master Servicer pursuant to Section 8.3(e).
"Escrow Amount" means any amount payable with respect to a
Mortgage
Loan for taxes, assessments, water rates, Standard Hazard Insurance
Policy
premiums, ground lease payments, reserves for capital improvements,
deferred
maintenance, repairs, tenant improvements, leasing commissions,
rental
achievements, environmental matters and other reserves or
comparable items.
"Euroclear" means the Euroclear system.
"Event of Default" has the meaning set forth in Section
8.28(b).
"Excess Interest" means, with respect to an ARD Loan if such ARD
Loan
is not prepaid in full on or before its Anticipated Repayment Date,
the excess,
if any of (i) interest accrued at the rate of interest applicable
to such
Mortgage Loan after such Anticipated Repayment Date (plus any
interest on such
interest as may be provided for under the Mortgage Loan documents)
over (ii)
interest accrued at the rate of interest applicable to such
Mortgage Loan before
such Anticipated Repayment Date. Excess Interest on an ARD Loan is
an asset of
the Trust, but shall not be an asset of any REMIC Pool formed
hereunder.
"Excess Interest Sub-account" means an administrative account
deemed to
be a sub-account of the Distribution Account, in accordance with
the provisions
of Section 5.3. The Excess Interest Sub-account shall not be an
asset of any
REMIC Pool formed hereunder.
"Excess Liquidation Proceeds" means, with respect to any Mortgage
Loan,
the excess of (i) Liquidation Proceeds of a Mortgage Loan or
Serviced Loan
Group, as applicable, or related REO Property, over (ii) the amount
that would
have been received if a Principal Prepayment in full had been made
with respect
to such Mortgage Loan on the date such proceeds were received plus
accrued and
unpaid interest with respect to such Mortgage Loan and all expenses
(including
Additional Trust Expenses and Unliquidated Advances) with respect
to such
Mortgage Loan.
"Excess Servicing Fee" means, with respect to the Mortgage Loans
for
which an "excess servicing fee rate" is designated on the Mortgage
Loan
Schedule, the monthly fee payable to the parties set forth on
Exhibit J hereto
or their successors and assigns, as holders of excess servicing
rights, which
fee shall accrue on the Scheduled Principal Balance of each such
Mortgage Loan
immediately prior to the Due Date occurring in each month at the
per annum rate
(determined in the same manner as the applicable Mortgage Rate for
such Mortgage
Loan is determined for such month) specified on the Mortgage Loan
Schedule (the
"Excess Servicing Fee Rate"). Each holder of a right to receive
Excess Servicing
Fees is entitled to Excess Servicing Fees only with respect to the
Mortgage
Loans as indicated on Exhibit J hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended,
and the rules and regulations thereunder.
"Exchange Certification" means an Exchange Certification
substantially
in the form set forth in Exhibit H hereto executed by a holder of
an interest in
a Regulation S Global Certificate or a Rule 144A IAI Global
Certificate, as
applicable.
"Expense Loss" means a loss realized upon payment by the Trust of
an
Additional Trust Expense and with respect to the Non-Trust Serviced
Pari Passu
Loan, without duplication, the pro rata portion of similar items to
the
Additional Trust Expenses, as such expenses are incurred by the
trust formed
pursuant to the 2007-HQ11 Pooling and Servicing Agreement or the
parties
thereto, to the extent allocable to the Non-Trust Serviced Pari
Passu Loan.
"Extension" has the meaning set forth in Section 9.15(a).
"FASB 140" means the Financial Accounting Standards Board's
Statement
No. 140, entitled "Accounting for Transfers and Servicing of
Financial Assets
and Extinguishment of Liabilities," issued in September 2002.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor
thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or
any
successor thereto.
"Final Certification" has the meaning set forth in Section 2.2.
"Final Prospectus Supplement" has the meaning set forth in the
Preliminary Statement hereto.
"Final Rated Distribution Date" means, with respect to each rated
Class
of Certificates, the Distribution Date in March 2044.
"Final Recovery Determination" means a determination with respect
to:
(i) any Mortgage Loan other than a Specially Serviced Mortgage
Loan), by the
applicable Master Servicer in consultation with the applicable
Special Servicer
and (ii) with respect to any Specially Serviced Mortgage Loan
(including a
Mortgage Loan that became an REO Property) by the applicable
Special Servicer,
in each case, in its good faith discretion, consistent with the
Servicing
Standard, that all Insurance Proceeds, Condemnation Proceeds,
Liquidation
Proceeds, Purchase Proceeds and other payments or recoveries which
the
applicable Master Servicer or the applicable Special Servicer, as
the case may
be, expects to be finally recoverable on such Mortgage Loan,
without regard to
any obligation of such Master Servicer or the Trustee, as the case
may be, to
make payments from its own funds pursuant to Article IV hereof,
have been
recovered. With respect to each Mortgage Loan that is
cross-collateralized by
Mortgaged Properties securing other Mortgage Loans, all of the
Mortgaged
Properties and other security must be considered in connection with
any such
Final Recovery Determination. The applicable Special Servicer shall
be required
to provide the applicable Master Servicer with prompt written
notice of any
Final Recovery Determination with respect to any Specially Serviced
Mortgage
Loan or REO Mortgage Loan upon making such determination. The
applicable Master
Servicer shall promptly notify the Trustee of such determination
and the Trustee
shall deliver a copy of such notice to each Rating Agency.
"Final Scheduled Distribution Date" means, for each Class of
rated
Certificates, the Distribution Date on which such Class would be
paid in full if
payments were made on the Mortgage Loans in accordance with their
terms, except
that the ARD Loan is assumed to be repaid on its Anticipated
Repayment Date.
"Fitch" means Fitch, Inc. or its successor in interest.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"Form 8-K Disclosure Information" has the meaning set forth in
Section
13.7.
"General Master Servicer" means Wells Fargo Bank, N.A., and its
permitted successors or assigns.
"General Special Servicer" means LNR Partners, Inc., or any
successor
General Special Servicer as herein provided, including without
limitation any
successor General Special Servicer appointed pursuant to Section
9.39.
"Global Certificate" means any Rule 144A IAI Global
Certificate,
Regulation S Temporary Global Certificate or Regulation S Permanent
Global
Certificate.
"Grantor Trust Provisions" shall mean those provisions of the
Code
relating to grantor trusts, which appear in subpart E, Part I of
subchapter J,
and related provisions, and proposed, temporary and final Treasury
regulations,
including Treasury Regulations Section 301.7701-4(c)(2), and any
published
rulings, notice and announcements promulgated thereunder, as the
foregoing may
be in effect from time to time.
"Group PB REMIC I Regular Interests" means, collectively, all of
the
REMIC I Regular Interests (other than the Group X-Y REMIC I Regular
Interests),
which are the REMIC I Regular Interests with principal
balances.
"Group X-Y REMIC I Regular Interests" means, collectively, the
REMIC I
Regular Interests, which represent interests in the Class X-Y Strip
Rates with
respect to the Specially Designated Co-op Mortgage Loans, which are
the REMIC I
Regular Interests without principal balances (but have notional
amounts for
purposes of accruing interest).
"Holder" means the Person in whose name a Certificate is registered
on
the Certificate Register.
"IAI Definitive Certificate" means, with respect to any Class
of
Certificates sold to Institutional Accredited Investors who are not
Qualified
Institutional Buyers, a Certificate in definitive, fully registered
certificated
form without interest coupons.
"Independent" means, when used with respect to any Accountants,
a
Person who is "independent" within the meaning of Rule 2-01(B) of
the
Commission's Regulation S-X. Independent means, when used with
respect to any
other Person, a Person who (A) is in fact independent of another
specified
Person and any Affiliate of such other Person, (B) does not have
any material
direct or indirect financial interest in such other Person or any
Affiliate of
such other Person, (C) is not connected with such other Person or
any Affiliate
of such other Person as an officer, employee, promoter,
underwriter, trustee,
partner, director or Person performing similar functions and (D) is
not a member
of the immediate family of a Person defined in clause (B) or (C)
above.
"Independent Contractor" means, either (i) with respect to any
Mortgage
Loan (A) that is not a Specially Serviced Mortgage Loan, any Person
designated
by the applicable Master Servicer (other than any Master Servicer,
but which may
be an Affiliate of such Master Servicer), or (B) that is a
Specially Serviced
Mortgage Loan, any Person designated by the applicable Special
Servicer that
would be an "independent contractor" with respect to a REMIC Pool
within the
meaning of Section 856(d)(3) of the Code if such REMIC Pool were a
real estate
investment trust (except that the ownership test set forth in such
Section shall
be considered to be met by any Person that owns, directly or
indirectly, 35% or
more of the Aggregate Certificate Balance or Notional Amount, as
the case may
be, of any Class of the Certificates (other than the Residual
Certificates), a
Percentage Interest of 35% or more in the Residual Certificates or
such other
interest in any Class of the Certificates or of the applicable
REMIC Pool as is
set forth in an Opinion of Counsel, which shall be at no expense to
the Trustee
or the Trust) so long as such REMIC Pool does not receive or derive
any income
from such Person and provided that the relationship between such
Person and such
REMIC is at arm's length, all within the meaning of Treasury
Regulations Section
1.856-4(b)(5), or (ii) any other Person (including a Master
Servicer or a
Special Servicer) upon receipt by the Trustee of an Opinion of
Counsel, which
shall be at the expense of the Person delivering such opinion to
the Trustee, to
the effect that the taking of any action in respect of any REO
Property by such
Person, subject to any conditions therein specified, that is
otherwise herein
contemplated to be taken by an Independent Contractor will not
cause such REO
Property to cease to qualify as "foreclosure property" within the
meaning of
Section 860G(a)(8) of the Code (determined without regard to the
exception
applicable for purposes of Section 860D(a) of the Code), or cause
any income
realized in respect of such REO Property to fail to qualify as
Rents from Real
Property.
"Initial Certification" has the meaning set forth in Section
2.2.
"Inspection Report" means a report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "Property
Inspection Form" available on the CMSA Website, or such other form
for the
presentation of such information and containing such additional
information as
may from time to time be approved by the CMSA for commercial
mortgage securities
transactions generally and, insofar as it requires the presentation
of
information in addition to that called for by the form of the
"Property
Inspection Form" available as of the Closing Date on the CMSA
Website, is
reasonably acceptable to the Master Servicer or the Special
Servicer, as
applicable.
"Institutional Accredited Investor" means an institutional
accredited
investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of
Regulation D
of the 1933 Act.
"Insurance Policies" means, collectively, any Standard Hazard
Insurance
Policy, flood insurance policy, title insurance policy, terrorism
insurance
policy or Environmental Insurance Policy relating to the Mortgage
Loans or the
Mortgaged Properties in effect as of the Closing Date or thereafter
during the
term of this Agreement.
"Insurance Proceeds" means amounts paid by the insurer under
any
Insurance Policy (other than amounts required to be paid over to
the Mortgagor
(or used to restore the related Mortgaged Property) pursuant to
law, the related
Mortgage Loan or the Servicing Standard). With respect to a
mortgaged property
securing the Non-Trust Serviced Loan Group, the Insurance Proceeds
will include
only the portion of such net proceeds that is payable to the holder
of the
Non-Trust Serviced Pari Passu Loan pursuant to the 2007-HQ11
Pooling and
Servicing Agreement.
"Insured Environmental Event" has the meaning set forth in
Section
9.1(f).
"Interest" means a REMIC I Regular Interest or a REMIC II
Regular
Interest, as applicable.
"Interest Accrual Period" means, with respect to each
Distribution
Date, for each Class of REMIC Regular Certificates, the calendar
month
immediately preceding the month in which such Distribution Date
occurs.
"Interest Reserve Account" means that Interest Reserve Account
maintained by the Trustee pursuant to Section 5.1(a), which account
shall be an
Eligible Account.
"Interest Reserve Amount" has the meaning set forth in Section
5.1(d).
"Interest Reserve Loans" shall mean the Mortgage Loans which
bear
interest other than on the basis of a 360-day year consisting of
twelve 30-day
months.
"Interest Reset Date" means the day that is two Banking Days prior
to
the start of the related Interest Accrual Period.
"Interested Person" means, as of any date of determination, the
Master
Servicers, the Special Servicers, the Depositor, the holder of any
related
Junior Indebtedness (with respect to any particular Mortgage Loan),
a holder of
50% or more of the Controlling Class, the Operating Adviser, any
Independent
Contractor engaged by a Master Servicer or the Special Servicer
pursuant to this
Agreement, or any Person actually known to a Responsible Officer of
the Trustee
to be an Affiliate of any of them.
"Investment Income" means income and gain realized on the
investment of
funds deposited in the Certificate Account.
"Investor-Based Exemption" means any of Prohibited Transaction
Class
Exemption ("PTCE") 84-14 (for transactions by independent
"qualified
professional asset managers"), PTCE 90-1 (for transactions by
insurance company
pooled separate accounts), PTCE 91-38 (for transactions by bank
collective
investment funds), PTCE 95-60 (for transactions by insurance
company general
accounts) or PTCE 96-23 (for transactions effected by "in-house
asset
managers"), or any comparable exemption available under Similar
Laws.
"Junior Indebtedness" means any indebtedness of any Mortgagor that
is
secured by a lien that is junior in right of payment to the lien of
the Mortgage
securing the related Mortgage Note.
"Late Collections" means, with respect to any Mortgage Loan,
all
amounts received during any Collection Period, whether as late
payments or as
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds,
Purchase
Proceeds or otherwise, that represent payments or collections of
Scheduled
Payments due but delinquent for a previous Collection Period and
not previously
recovered.
"Late Fees" means a fee payable to the applicable Master Servicer
or
the applicable Special Servicer, as the case may be, to the extent
actually
collected from the Mortgagor as provided in the related Mortgage
Loan in
connection with a late payment made by such Mortgagor.
"Liquidation Expenses" means reasonable and direct expenses
incurred by
the applicable Special Servicer on behalf of the Trust in
connection with the
liquidation of any Specially Serviced Mortgage Loan or REO Property
acquired in
respect thereof including, without limitation, reasonable legal
fees and
expenses, appraisal fees, committee or referee fees, property
manager fees, and,
if applicable, brokerage commissions and conveyance taxes for such
Specially
Serviced Mortgage Loan. All Liquidation Expenses relating to
disposition of the
Specially Serviced Mortgage Loan shall be (i) paid out of income
from the
related REO Property, to the extent available, (ii) paid out of
related proceeds
from liquidation or (iii) advanced by the applicable Master
Servicer or Special
Servicer, subject to Section 4.4 and Section 4.6(d) hereof, as a
Servicing
Advance.
"Liquidation Fee" means a fee equal to the product of (x) 1.00% and
(y)
the Liquidation Proceeds received in connection with full or
partial liquidation
of a Specially Serviced Mortgage Loan or related REO Property and
any
Condemnation Proceeds or Insurance Proceeds received by the Trust
(other than
Liquidation Proceeds received in connection with the
Non-Trust-Serviced Pari
Passu Loan, except as set forth in Section 2.3(a) hereof);
provided, however,
that (A) in the case of a final disposition consisting of the
repurchase of a
Mortgage Loan or REO Property by a Seller pursuant to Section 2.3,
such fee will
only be paid by such Seller and due to a Special Servicer if
repurchased after
the date that is 90 days (or 180 days, if the related Seller is
diligently
attempting to cure or correct the related Material Document Defect
or Material
Breach, as the case may be in accordance with the terms and
conditions of
Section 2.3(a) hereof) or more after the applicable Seller receives
notice of
the breach or defect causing the repurchase; or (B) in the case of
a repurchase
of a Mortgage Loan by the holder of a related mezzanine lender,
such fee will
only be due to a Special Servicer if repurchased 60 days after a
Master
Servicer, Special Servicer or Trustee receives notice of the
default causing the
repurchase.
"Liquidation Proceeds" means (i) with respect to the sale or
liquidation of a Mortgage Loan or related REO Property (other than
pursuant to
Section 2.3), the proceeds of such sale or liquidation net of
Liquidation
Expenses (to the extent not otherwise paid pursuant to Section
4.6(c)) (and with
respect to the sale or liquidation of any REO Property related to
the Non-Trust
Serviced Loan Group, any portion of such amounts allocable to the
Non-Trust
Serviced Pari Passu Loan) and (ii) with respect to the repurchase
of a Mortgage
Loan or an REO Mortgage Loan pursuant to Section 2.3, the Purchase
Price of such
Mortgage Loan or REO Mortgage Loan (or such allocable portion) at
the time of
such repurchase. With respect to the Non-Trust Serviced Loan Group,
the
Liquidation Proceeds will include only the portion of such net
proceeds that is
payable to the holder of the Non-Trust Serviced Pari Passu Loan
pursuant to the
2007-HQ11 Pooling and Servicing Agreement.
"Liquidation Realized Loss" means, with respect to each Mortgage
Loan
or REO Property, as the case may be, as to which a Cash Liquidation
or REO
Disposition has occurred, an amount equal to the sum, without
duplication, of
(A) the Principal Balance of the Mortgage Loan (or deemed Principal
Balance, in
the case of an REO Mortgage Loan) as of the date of the Cash
Liquidation or REO
Disposition (adjusted in accordance with Section 6.6(c)(i)), plus
(B) unpaid
interest and interest accrued thereon at the applicable Mortgage
Rate (including
interest accrued and unpaid on the portion of the Principal Balance
added in
accordance with Section 6.6(c)(i), which interest shall accrue from
the date of
the reduction in the Principal Balance resulting from the
allocation of a
Realized Loss incurred pursuant to Section 6.6(b)(i)), plus (C) any
expenses
(including Additional Trust Expenses, but not including Special
Servicing Fees)
incurred in connection with such Mortgage Loan that are payable or
reimbursable
to any Person, other than amounts previously treated as Expense
Losses or
included in the definition of Liquidation Expenses minus the sum of
(i) REO
Income allocated as recoveries of principal or interest on the
related Mortgage
Loan, and (ii) with respect to any Mortgage Loan, Liquidation
Proceeds, Late
Collections and all other amounts received from the related
Mortgagor and
received during the Collection Period in which such Cash
Liquidation or REO
Disposition occurred. REO Income and Liquidation Proceeds shall be
applied first
against any Expense Losses (to the extent not included in the
definition of
Liquidation Expenses) for such Mortgage Loan, the unpaid interest
on the
Mortgage Loan, calculated as described in clause (B) above, and
then against the
Principal Balance of such Mortgage Loan, calculated as described in
clause (A)
above in accordance with Section 1.2(b) hereof.
"Loan Group" means either Loan Group 1 or Loan Group 2, as the case
may
be.
"Loan Group 1" means all of the Mortgage Loans that are Loan Group
1
Mortgage Loans and any successor REO Mortgage Loans with respect
thereto.
"Loan Group 1 Mortgage Loan" means any Mortgage Loan identified on
the
Mortgage Loan Schedule as belonging to Loan Group 1.
"Loan Group 1 Principal Distribution Amount" means, for any
Distribution Date, that portion, if any, of the Principal
Distribution Amount
attributable to Mortgage Loans included in Loan Group 1.
"Loan Group 2" means all of the Mortgage Loans that are Loan Group
2
Mortgage Loans and any successor REO Mortgage Loans with respect
thereto.
"Loan Group 2 Mortgage Loan" means any Mortgage Loan identified on
the
Mortgage Loan Schedule as belonging to Loan Group 2.
"Loan Group 2 Principal Distribution Amount" means, for any
Distribution Date, that portion, if any, of the Principal
Distribution Amount
attributable to Mortgage Loans included in Loan Group 2.
"Loan Group Principal Distribution Amount" means the Loan Group
1
Principal Distribution Amount or the Loan Group 2 Principal
Distribution Amount,
as applicable.
"Loan-to-Value Ratio" means, as of any date with respect to a
Mortgage
Loan, the fraction, expressed as a percentage, the numerator of
which is the
Principal Balance of such Mortgage Loan at the date of
determination and the
denominator of which is the Appraised Value of the Mortgaged
Property as shown
on the most recent Appraisal or valuation of the Mortgaged Property
which is
available as of such date.
"Lock-Box Account" has the meaning set forth in Section 8.3(g).
"Lock-Box Agreement" means, with respect to any Mortgage Loan,
any
lock-box agreement relating to such Mortgage Loan among the related
Mortgagor, a
depositary institution and the Master Servicer (or a Primary
Servicer or Sub
Servicer on its behalf) pursuant to which a Lock-Box Account is
created.
"Losses" has the meaning set forth in Section 12.4.
"MAI" means Member of the Appraisal Institute.
"Master Servicer" means: (a) with respect to any Mortgage Loan
(other
than an NCB, FSB Loan), any REO Property acquired by the Trust with
respect to a
Mortgage Loan (other than an NCB, FSB Loan) and any matters
relating to the
foregoing, the General Master Servicer; and (b) with respect to any
NCB, FSB
Loan, any REO Property acquired by the Trust with respect to an
NCB, FSB Loan
and any matters relating to the foregoing, the NCB Master
Servicer.
"Master Servicer Remittance Date" means, for each Distribution
Date,
the Business Day immediately preceding such Distribution Date.
"Master Servicing Fee" means for each calendar month, as to
each
Mortgage Loan (other than the Non-Trust Serviced Pari Passu Loan,
as to which
there is no Master Servicing Fee payable to the Master Servicers),
an amount
equal to the Master Servicing Fee Rate applicable to such month
(determined in
the same manner (other than the rate of accrual) as the applicable
Mortgage Rate
is determined for such Mortgage Loan for such month) multiplied by
the Scheduled
Principal Balance of such Mortgage Loan immediately before the Due
Date
occurring in such month, subject to reduction in respect of
Compensating
Interest, as set forth in Section 8.10(c). For the avoidance of
doubt, Master
Servicing Fees are in addition to Primary Servicing Fees.
"Master Servicing Fee Rate" means, with respect to each Mortgage
Loan
(other than the Non-Trust Serviced Pari Passu Loan), the rate per
annum
specified as such on the Mortgage Loan Schedule. With respect to
the Non-Trust
Serviced Pari Passu Loan, no Master Servicing Fee Rate is charged
by the Master
Servicers, but the Pari Passu Loan Servicing Fee Rate is charged
pursuant to the
2007-HQ11 Pooling and Servicing Agreement.
"Material Breach" has the meaning set forth in Section 2.3(a).
"Material Document Defect" has the meaning set forth in Section
2.3(a).
"Maturity Date" means, with respect to any Mortgage Loan, as of
any
date of determination, the date on which the last payment of
principal is due
and payable thereunder, after taking into account all Principal
Prepayments
received and any Deficient Valuation, Debt Service Reduction Amount
or
modification of the Mortgage Loan occurring prior to such date of
determination,
but without giving effect to (i) any acceleration of the principal
of such
Mortgage Loan or (ii) any grace period permitted by such Mortgage
Loan.
"MERS" means Mortgage Electronic Registration Systems, Inc.
"Modification Fee" means a fee, if any, collected in connection
with
the modification of a Mortgage Loan.
"Modification Loss" means, with respect to each Mortgage Loan (i)
a
decrease in the Principal Balance of such Mortgage Loan, as a
result of a
modification thereof in accordance with the terms hereof, (ii) any
expenses
connected with such modification, to the extent (x) reimbursable to
the Trustee,
the applicable Special Servicer or the applicable Master Servicer
and (y) not
recovered from the Mortgagor or (iii) in the case of a modification
of such
Mortgage Loan that reduces the Mortgage Rate thereof, the excess,
on each Due
Date, of the amount of interest that would have accrued at a rate
equal to the
original Mortgage Rate, over interest that actually accrued on such
Mortgage
Loan during the preceding Collection Period.
"Money Term" means, with respect to any Mortgage Loan, the
Maturity
Date, Mortgage Rate, Principal Balance, amortization term or
payment frequency
thereof, or the amount of the scheduled payment thereof, or any
provision
thereof requiring the payment of a prepayment premium, yield
maintenance payment
or percentage premium in connection with a principal prepayment
(and shall not
include late fees or default interest provisions).
"Monthly Certificateholders Report" means a report provided
pursuant to
Section 5.4 by the Trustee monthly as of the related Determination
Date
generally in the form and substance of Exhibit M, which sets forth,
to the
extent applicable: (i) the date of such Distribution Date and of
the Record
Date, Interest Accrual Period and Determination Date for such
Distribution Date;
(ii) the Available Distribution Amount for the Distribution Date,
and any other
cash flows received on the Mortgage Loans and applied to pay fees
and expenses
(including the components of the Available Distribution Amount or
such other
cash flows); (iii) the aggregate amount of servicing fees, Special
Servicing
Fees, other special servicing compensation and Trustee Fees paid to
the Master
Servicers, the Special Servicers and the Trustee with respect to
the Mortgage
Pool and with respect to each Loan Group and, with respect to
the
Non-Trust-Serviced Pari Passu Loan and only to the extent that such
information
is provided to the Trustee by another party, the fees paid to the
2007-HQ11
Master Servicer and the 2007-HQ11 Special Servicer; (iv) the amount
of other
fees and expenses accrued and paid from the Trust Fund, including
without
limitation Advance reimbursement and interest on Advances, and
specifying the
purpose of such fees or expenses and the party receiving payment of
those
amounts, if applicable; (v) the amount, if any, of such
distributions to the
holders of each Class of Principal Balance Certificates applied to
reduce the
respective Certificate Balances thereof; (vi) the amount of such
distribution to
holders of each Class of Certificates allocable to (A) interest
accrued
(including Excess Interest) at the respective Pass-Through Rates,
less any Net
Aggregate Prepayment Interest Shortfalls and (B) Prepayment
Premiums or Yield
Maintenance Charges; (vii) the amount of any shortfall in
principal
distributions and any shortfall in interest distributions to each
applicable
Class of Certificates; (viii) the amount of excess cash flow, if
any distributed
to the holder of the Residual Certificates; (ix) the Weighted
Average REMIC I
Net Mortgage Rate (and interest rates by distributional groups or
ranges) of the
Mortgage Loans as of the related Determination Date; (x) the number
of
outstanding Mortgage Loans and the aggregate Principal Balance and
Scheduled
Principal Balance of the Mortgage Loans at the close of business on
such
Determination Date, with respect to the Mortgage Pool and with
respect to each
Loan Group; (xi) the number and aggregate Scheduled Principal
Balance of
Mortgage Loans, with respect to the Mortgage Pool and with respect
to each Loan
Group (A) delinquent 30-59 days, (B) delinquent 60-89 days, (C)
delinquent 90 or
more days, (D) as to which foreclosure proceedings have been
commenced, or (E)
as to which bankruptcy proceedings have been commenced; (xii) the
number and
related Principal Balances of any Mortgage Loans modified, extended
or waived on
a loan-by-loan basis since the previous Determination Date
(including a
description of any modifications, extensions or waivers to mortgage
loan terms,
fees, penalties or payments during the distribution period as
provided to the
Trustee); (xiii) with respect to any REO Property included in the
Trust, the
Principal Balance of the related Mortgage Loan as of the date of
acquisition of
the REO Property and the Scheduled Principal Balance thereof; (xiv)
as of the
related Determination Date (A) as to any REO Property sold during
the related
Collection Period, the date of the related determination by the
applicable
Special Servicer that it has recovered all payments which it
expects to be
finally recoverable and the amount of the proceeds of such sale
deposited into
the Certificate Account, and (B) the aggregate amount of other
revenues
collected by each Special Servicer with respect to each REO
Property during the
related Collection Period and credited to the Certificate Account,
in each case
identifying such REO Property by the loan number of the related
Mortgage Loan;
(xv) the Aggregate Certificate Balance or Notional Amount, as the
case may be,
of each Class of Certificates before and after giving effect to the
distribution
made on such Distribution Date; (xvi) the aggregate amount of
Principal
Prepayments made during the related Collection Period with respect
to the
Mortgage Pool and with respect to each Loan Group; (xvii) the
Pass-Through Rate
applicable to each Class of Certificates for such Distribution
Date; (xviii) the
amount of Unpaid Interest, Realized Losses or Expense Losses, if
any, incurred
with respect to the Mortgage Loans, including a breakout by type of
such
Realized Losses or Expense Losses, with respect to the Mortgage
Pool and with
respect to each Loan Group; (xix) the aggregate amount of Servicing
Advances and
P&I Advances outstanding separately stated that have been made
by the applicable
Master Servicer, the applicable Special Servicer and the Trustee,
with respect
to the Mortgage Pool and with respect to each Loan Group and the
aggregate
amount of servicing advances made by the 2007-HQ11 Master Servicer
in respect of
the Non-Trust-Serviced Loan Group (to the extent such information
has been
provided to the Trustee by a third party); (xx) the amount of any
Appraisal
Reductions effected during the related Collection Period on a
loan-by-loan basis
and the total Appraisal Reductions in effect as of such
Distribution Date, with
respect to the Mortgage Pool and with respect to each Loan Group
(and in the
case of the Non-Trust-Serviced Pari Passu Loan, the amount of any
appraisal
reductions effected under the 2007-HQ11 Pooling and Servicing
Agreement to the
extent such information has been provided to the Trustee by a third
party);
(xxi) any Material Breaches of Mortgage Loan representations and
warranties of
which the Trustee, any Master Servicer or any Special Servicer has
received
written notice; (xxii) material breaches of any covenants under
this Agreement
of which the Trustee, any Master Servicer or any Special Servicer
has received
written notice; (xxiii) if applicable to any transaction,
information regarding
any tests used for determining early amortization, liquidation or
other
performance trigger and whether the trigger was met; and (xxiv) as
determined
and/or approved by the Depositor, any other information necessary
to satisfy the
requirements of Item 1121(a) of Regulation AB that can, in the
Trustee's
reasonable judgment, be included on the Monthly Certificateholders
Report
without undue difficulty. In the case of information furnished
pursuant to
subclauses (v), (vi) and (xv) above, the amounts shall be expressed
in the
aggregate and as a dollar amount per $1,000 of original principal
amount of the
Certificates for all Certificates of each applicable Class.
"Mortgage" means the mortgage, deed of trust or other
instrument
securing a Mortgage Note.
"Mortgage File" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening
endorsements,
endorsed
by an allonge attached thereto or endorsed in blank or endorsed
"Pay to
the order of U.S. Bank National Association, as Trustee for
Morgan
Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series
2007-IQ13, without recourse, representation or warranty" or if
the
original
Mortgage Note is not included therein, then a lost note
affidavit
and
indemnity with a copy of the Mortgage Note attached thereto;
(ii) the original Mortgage, with evidence of recording thereon,
and, if
the
Mortgage was executed pursuant to a power of attorney, a certified
true
copy of
the power of attorney certified by the public recorder's
office,
with
evidence of recording thereon (if recording is customary in the
jurisdiction in which such power of attorney was executed) or
certified by a
title insurance company or
escrow company to be a true copy thereof;
provided
that if such original Mortgage cannot be delivered with evidence
of
recording
thereon on or prior to the 90th day following the Closing Date
because of
a delay caused by the public recording office where such
original
Mortgage
has been delivered for recordation or because such original
Mortgage
has been lost, the Depositor shall deliver or cause to be
delivered
to the
Trustee a true and correct copy of such Mortgage, together with
(A)
in the
case of a delay caused by the public recording office, an
Officer's
Certificate of the applicable Seller stating that such original
Mortgage has
been sent
to the appropriate public recording official for recordation or
(B) in the
case of an original Mortgage that has been lost after
recordation, a certification by the appropriate county recording
office
where such
Mortgage is recorded that such copy is a true and complete copy
of the
original recorded Mortgage;
(iii) the originals of all agreements modifying a Money Term or
other
material
modification, consolidation and extension agreements, if any,
with,
if
applicable, evidence of recording thereon (which are reflected in
the
Mortgage
Loan Schedule), or if such original modification, consolidation
and
extension
agreements have been delivered to the appropriate recording
office
for
recordation and either have not yet been returned on or prior to
the
90th day
following the Closing Date with evidence of recordation thereon
or
have been
lost after recordation, true copies of such modifications,
consolidations and extensions certified by the applicable Seller
together
with (A)
in the case of a delay caused by the public recording office,
an
Officer's
Certificate of the applicable Seller stating that such original
modification, consolidation or extension agreement has been
dispatched or
sent to
the appropriate public recording official for recordation or (B)
in
the case
of an original modification, consolidation or extension
agreement
that has
been lost after recordation, a certification by the appropriate
county
recording office where such document is recorded that such copy is
a
true and complete copy of
the original recorded modification, consolidation
or
extension agreement, and the originals of all assumption
agreements, if
any;
(iv) an original Assignment of Mortgage for each Mortgage Loan, in
form
and
substance acceptable for recording (except for recording
information not
yet
available if the instrument being recorded has not been returned
from
the
applicable recording office), signed by the holder of record in
blank or
in favor
of "U.S. Bank National Association, as Trustee for Morgan
Stanley
Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-IQ13"
(or, in the case of the Non-Trust-Serviced Pari Passu Loan, in
favor of
the 2007-HQ11 Trustee pursuant to the 2007-HQ11 Pooling and
Servicing
Agreement); provided that, if the related Mortgage has been
recorded
in the name of MERS or its designee, no related Assignment of
Mortgage
in favor of the Trustee will be required to be recorded or
delivered
and instead, the applicable Seller pursuant to the applicable
Mortgage
Loan Purchase Agreement shall take all actions as are necessary
to
cause the
Trustee to be shown as, and shall deliver evidence of any such
transfers
to the Master Servicers and the Special Servicers, and the
Trustee
shall take
all actions necessary to confirm that it is shown as, the owner
of the
related Mortgage on the records of MERS for purposes of the system
of
recording
transfers of beneficial ownership of mortgages maintained by
MERS;
(v) originals of all intervening assignments of Mortgage, if any,
with
evidence
of recording thereon or, if such original assignments of
Mortgage
have been
delivered to the appropriate recorder's office for recordation,
certified
true copies of such assignments of Mortgage certified by the
applicable
Seller, or in the case of an original blanket intervening
assignment
of Mortgage retained by the applicable Seller, a copy thereof
certified
by the applicable Seller or, if any original intervening
assignment
of Mortgage has not yet been returned on or prior to the 90th
day
following
the Closing Date from the applicable recording office or has
been
lost, a
true and correct copy thereof, together with (A) in the case of
a
delay
caused by the public recording office, an Officer's Certificate of
the
applicable
Seller stating that such original intervening assignment of
Mortgage
has been sent to the appropriate public recording official for
recordation or (B) in the case of an original intervening
assignment of
Mortgage
that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is
recorded that
such copy
is a true and complete copy of the original recorded
intervening
assignment
of Mortgage;
(vi) if the related Assignment of Leases is separate from the
Mortgage,
the
original of such Assignment of Leases with evidence of recording
thereon
or certified by a title insurance
company or escrow company to be a true
copy
thereof; provided that or, if such Assignment of Leases has not
been
returned
on or prior to the 90th day following the Closing Date because of
a
delay
caused by the applicable public recording office where such
Assignment
of Leases
has been delivered for recordation or because such original
Assignment
of Leases has been lost, the Seller shall deliver or cause to
be
delivered
to the Trustee a true and correct copy of such Assignment of
Leases
submitted for recording, together with, (A) in the case of a
delay
caused by
the public recording office, an Officer's Certificate (as
defined
below) of
the Seller stating that such Assignment of Leases has been sent
to
the
appropriate public recording official for recordation or (B) in the
case
of an
original Assignment of Leases that has been lost after recordation,
a
certification by the appropriate county recording office where
such
Assignment
of Leases is recorded that such copy is a true and complete
copy
of the
original recorded Assignment of Leases, in each case together with
an
original
assignment of such Assignment of Leases, in recordable form
(except
for
recording information not yet available if the instrument being
recorded
has not
been returned from the applicable recording office), signed by
the
holder of
record in favor of "U.S. Bank National Association, as Trustee
for
Morgan
Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ13," which assignment may be effected
in the
related
Assignment of Mortgage (or, in the case of the
Non-Trust-Serviced
Pari Passu
Loan, in favor of the 2007-HQ11 Trustee pursuant to the
2007-HQ11
Pooling
and Servicing Agreement); provided that, if the related
Assignment
of Leases
has been recorded in the name of MERS or its designee, no
Assignment
of Leases or assignment of Assignment of Leases in favor of the
Trustee
will be required to be recorded or delivered and instead, the
applicable
Seller pursuant to the applicable Mortgage Loan Purchase
Agreement
shall take all actions as are necessary to cause the Trustee to
be
shown as,
and shall deliver evidence of any such transfers to the Master
Servicers
and the Special Servicers, and the Trustee shall take all
actions
necessary
to confirm that it is shown as, the owner of the related
Assignment
of Leases on the records of MERS for purposes of the system of
recording
transfers of beneficial ownership of mortgages maintained by
MERS;
(vii) the original or a copy of each guaranty, if any,
constituting
additional
security for the repayment of such Mortgage Loan;
(viii) the original Title Insurance Policy, or in the event
such
original
Title Insurance Policy has not been issued, a binder, actual
"marked-up" title commitment, pro forma policy, or an agreement to
provide
any of the
foregoing pursuant to binding escrow instructions executed by
the
title
company or its authorized agent, with the original Title
Insurance
Policy to
follow within 180 days of the Closing Date, or a copy of any of
the
foregoing certified by the title company with the original
Title
Insurance
Policy to follow within 180 days of the Closing Date, or a
preliminary title report with the original Title Insurance Policy
to follow
within 180
days of the Closing Date;
(ix) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and
(B) UCC-2
or UCC-3
financing statements assigning such UCC financing statements to
the
Trustee
(or, in the case of the Non-Trust-Serviced Pari Passu Loan, to
the
2007-HQ11
Trustee) executed and delivered in connection with the Mortgage
Loan;
provided that, if the related Mortgage Loan has been recorded in
the
name of
MERS or its designee, no UCC, UCC-2 or UCC-3 financing statement
in
favor of
the Trustee will be required to be recorded or delivered and
instead,
the applicable Seller pursuant to the applicable Mortgage Loan
Purchase
Agreement shall take all actions as are necessary to cause the
Trustee,
on behalf of the Certificateholders, to be shown as, and shall
deliver
evidence of any such transfers to the Master Servicers and the
Special
Servicers, and the Trustee shall take all actions necessary to
confirm
that it is shown as, the secured party on the related UCC
financing
statements
on the records of MERS for purposes of the system of recording
transfers
of beneficial ownership of mortgages maintained by MERS;
(x) copies of the related ground lease(s), if any, related to
any
Mortgage
Loan where the Mortgagor is the lessee under such ground lease
and
there is a
lien in favor of the mortgagee in such lease;
(xi) copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan
(including,
without
limitation, the Co-Lender Agreement);
(xii) either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other
than
letters of
credit representing tenant security deposits which have been
collaterally assigned to the lender), which shall be assigned and
delivered
to the
Trustee on behalf of the Trust with a copy to be held by the
Primary
Servicer
(or the Master Servicer), and applied, drawn, reduced or
released
in
accordance with documents evidencing or securing the applicable
Mortgage
Loan, this
Agreement and the applicable Primary Servicing Agreement or,
(B)
the
original of each letter of credit, if any, constituting
additional
collateral
for such Mortgage Loan (other than letters of credit
representing
tenant
security deposits which have been collaterally assigned to the
lender),
which shall be held by the applicable Primary Servicer (or the
applicable
Master Servicer) on behalf of the Trustee and applied, drawn,
reduced or
released in accordance with documents evidencing or securing
the
applicable
Mortgage Loan, this Agreement and the applicable Primary
Servicing
Agreement (it being understood that each Seller has agreed (a)
that the
proceeds of such letter of credit belong to the Trust, (b) to
notify, on
or before the Closing Date, the bank issuing the letter of
credit
that the
letter of credit and the proceeds thereof belong to the Trust,
and
to use
reasonable efforts to obtain within 30 days (but in any event
to
obtain
within 90 days) following the Closing Date, an acknowledgement
thereof by
the bank (with a copy of such acknowledgement to be sent to the
Trustee)
or a reissued letter of credit and (c) to indemnify the Trust
for
any
liabilities, charges, costs, fees or other expenses accruing from
the
failure of
the Seller to assign the letter of credit hereunder). In the
case
of clause
(B) above, each Primary Servicer (and the General Master
Servicer)
acknowledges that any letter of credit held by it shall be held in
its
capacity
as agent of the Trust, and if a Primary Servicer or a Master
Servicer,
as applicable, sells its rights to service the applicable
Mortgage
Loan, the
applicable Primary Servicer or a Master Servicer, as
applicable,
will
assign the applicable letter of credit to the Trust or at the
direction
of the
General Special Servicer to such party as such Special Servicer
may
instruct,
in each case, at the expense of the Primary Servicer or a
Master
Servicer,
as applicable. The Primary Servicer (or the applicable Master
Servicer)
shall indemnify the Trust for any loss caused by the
ineffectiveness of such assignment;
(xiii) the original or a copy of the environmental indemnity
agreement,
if any,
related to any Mortgage Loan;
(xiv) copies of third-party management agreements, if any, for
all
hotels and
for such other Mortgaged Properties securing Mortgage Loans
with
a Cut-Off Date Principal
Balance equal to or greater than $20,000,000;
(xv) the original of any Environmental Insurance Policy or if
the
original
is held by the related borrower, a copy thereof;
(xvi) a copy of any affidavit and indemnification agreement in
favor of
the
lender;
(xvii) with respect to hospitality properties, a copy of any
franchise
agreement,
franchise comfort letter and applicable assignment or transfer
documents;
and
(xviii) with respect to the Non-Trust-Serviced Pari Passu Loan, a
copy
of the
2007-HQ11 Pooling and Servicing Agreement.
With respect to the Non-Trust-Serviced Pari Passu Loan, the
preceding
document delivery requirements will be met by the delivery by the
Depositor of
copies of the documents specified above (other than the Mortgage
Note (and all
intervening endorsements) evidencing the Non-Trust-Serviced Pari
Passu Loan,
with respect to which the originals shall be required), including a
copy of the
related Mortgage.
"Mortgage Loan" means a Mortgage Note secured by a Mortgage, and
all
amendments and modifications thereof, identified on the Mortgage
Loan Schedule,
as amended from time to time, and conveyed, transferred, sold,
assigned to or
deposited with the Trustee pursuant to Section 2.1 or Section 2.3.
Mortgage Loan
shall also include any Defeasance Loan and any REO Mortgage Loan,
unless the
context requires otherwise.
"Mortgage Loan Purchase Agreement" means Mortgage Loan Purchase
Agreement I, Mortgage Loan Purchase Agreement II, Mortgage Loan
Purchase
Agreement III, Mortgage Loan Purchase Agreement IV and Mortgage
Loan Purchase
Agreement V, as the case may be.
"Mortgage Loan Purchase Agreement I" means that certain Mortgage
Loan
Purchase Agreement between MSMC and the Depositor dated as of March
1, 2007 with
respect to the MSMC Loans, a form of which is attached hereto as
Exhibit K-1.
"Mortgage Loan Purchase Agreement II" means that certain Mortgage
Loan
Purchase Agreement between Natixis and the Depositor dated as of
March 1, 2007
with respect to the Natixis Loans, a form of which is attached
hereto as Exhibit
K-2.
"Mortgage Loan Purchase Agreement III" means that certain Mortgage
Loan
Purchase Agreement between SunTrust and the Depositor dated as of
March 1, 2007
with respect to the SunTrust Loans, a form of which is attached
hereto as
Exhibit K-3.
"Mortgage Loan Purchase Agreement IV" means that certain Mortgage
Loan
Purchase Agreement between NCB, FSB and the Depositor dated as of
March 1, 2007
with respect to the NCB, FSB Loans, a form of which is attached
hereto as
Exhibit K-4.
"Mortgage Loan Schedule" or "Loan Schedule" means collectively
the
schedule attached hereto as Schedule I, which identifies each MSMC
Loan, the
schedule attached hereto as Schedule II, which identifies each
Natixis Loan, the
schedule attached hereto as Schedule III, which identifies each
SunTrust Loan,
and the schedule attached hereto as Schedule IV, which identifies
each NCB, FSB
Loan, as such schedules may be amended from time to time pursuant
to Section
2.3.
"Mortgage Note" means the note or other evidence of
indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage
Loan.
"Mortgage Pool" means all of the Mortgage Loans and any successor
REO
Mortgage Loans, collectively.
"Mortgage Rate" means, for a given Mortgage Loan, the per annum
rate at
which interest accrues on such Mortgage Loan.
"Mortgaged Property" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor
under the
related Mortgage Loan.
"Mortgagee" means, with respect to any Mortgage as of any date
of
determination, the mortgagee named therein as of such date.
"Mortgagor" means the obligor on a Mortgage Note.
"MSMC" has the meaning assigned in the Preliminary Statement
hereto.
"MSMC Loans" means, collectively, those Mortgage Loans sold to
the
Depositor pursuant to the Mortgage Loan Purchase Agreement I and
shown on
Schedule I hereto.
"Natixis" has the meaning assigned in the Preliminary Statement
hereto.
"Natixis Loans" means, collectively, those Mortgage Loans sold to
the
Depositor pursuant to the Mortgage Loan Purchase Agreement II and
shown on
Schedule II hereto.
"Natixis Sub-Servicer" means Laureate Capital LLC and CBRE, each in
its
capacity as sub-servicer of the Natixis Loans pursuant to each
Natixis
Sub-Servicing Agreement.
"Natixis Sub-Servicing Agreement" means each agreement between
Laureate
Capital LLC and NorthMarg Capital, Inc., respectively, and the
General Master
Servicer, each dated as of March 1, 2007, under which such Natixis
Sub-Servicers
service the Natixis Mortgage Loans set forth on the schedule
attached thereto.
"NCB Master Servicer's Website" has the meaning set forth in
Section
8.14 hereof.
"NCB Master Servicer" means NCB, FSB and its permitted successors
or
assigns.
"NCB, FSB Loans" means, collectively, those Mortgage Loans sold to
the
Depositor pursuant to the Mortgage Loan Purchase Agreement IV and
shown on
Schedule IV hereto.
"NCB, FSB Subordinate Debt Conditions" means, with respect to a
Mortgagor encumbering a Mortgaged Property relating to a Co-op
Mortgage Loan
with a subordinate mortgage, the following conditions: (i) each of
the loans, or
the sole loan, to be secured by each such subordinate mortgage is
made by NCB,
FSB or any Affiliate thereof (ii) each such subordinate mortgage is
expressly
subject and subordinate to the lien of the Mortgage encumbering the
Mortgaged
Property in question, (iii) each such subordinate mortgage is
expressly made in
compliance with the underwriting standards which NCB, FSB
customarily employs in
connection with making subordinate mortgages for its own mortgage
loan
portfolio, (iv) as of the date of the closing of the subordinate
mortgage loan
in question, the New Loan-to-Value Ratio (as defined below) does
not exceed 40%,
(v) NCB, FSB or any Affiliate thereof that originates the
subordinate mortgage
loan, executes and delivers to the Trustee for inclusion in the
Mortgage File a
subordination agreement with respect to such subordinate mortgage
in
substantially the form of Exhibit T hereto (provided that the
Trustee shall have
no responsibility for determining the sufficiency or validity
thereof), (vi) if
the subordinate mortgage loan will not be a fully amortizing loan,
the stated
maturity date of the subordinate mortgage loan shall be no earlier
than the
maturity date of the related Co-op Mortgage Loan, (vii) the
subordinate mortgage
loan shall have interest payable on a current basis, with no
deferral, (viii)
the subordinate mortgage loan is made principally for the purpose
of funding
capital expenditures, major repairs or reserves at or with respect
to the
Mortgaged Property in question and (ix) the aggregate amount of
subordinate debt
encumbering the Mortgaged Property in question does not exceed
$7,500,000. For
purposes of this definition, and notwithstanding anything herein to
the
contrary: "Mortgage Debt" shall mean the sum of (x) the aggregate
outstanding
principal balance of all loans secured by one or more mortgages
then encumbering
the Mortgaged Property in question (including the related Co-op
Mortgage Loan
and any then existing subordinate mortgage loans) and (y) the
principal amount
of the proposed new subordinate mortgage loan; "New Loan-to-Value
Ratio" shall
mean, as of any date for any Co-op Mortgage Loan, the fraction,
expressed as a
percentage, the numerator of which is the Mortgage Debt for the
related
Mortgaged Property on such date, and the denominator of which is
the Appraised
Value of the related Mortgaged Property; and "Appraised Value"
shall be based on
an MAI appraisal of the applicable Mortgaged Property made, in
conformance with
NCB, FSB's customary underwriting requirements, not more than one
year prior to
the origination date of the related Co-op Mortgage Loan and
reviewed by the NCB
Master Servicer.
"NCB, FSB Trust Assets" means the NCB, FSB Loans, any REO
Properties
acquired by the Trust with respect to the NCB, FSB Loans and any
and all other
related assets of the Trust.
"NCB, FSB" has the meaning assigned in the Preliminary
Statement
hereto.
"Net Aggregate Prepayment Interest Shortfall" means, for any
Distribution Date and each Master Servicer, the excess of all
Prepayment
Interest Shortfalls incurred in respect of all (or, where
specified, a portion)
of the Mortgage Loans serviced by such Master Servicer (including
Specially
Serviced Mortgage Loans) during any Collection Period over the sum
of (A) the
Compensating Interest to be paid by such Master Servicer (or any
Primary
Servicer or Sub-Servicer, if applicable according to the related
Primary
Servicing Agreement or Sub-Servicing Agreement) on such
Distribution Date and
(B) the aggregate Prepayment Interest Excesses during such
Collection Period for
such Master Servicer's Mortgage Loans (including Specially Serviced
Mortgage
Loans). Prepayment Interest Shortfalls and Prepayment Interest
Excesses will be
separately accounted for by each of the Master Servicers.
"Net Mortgage Rate" means, in general, with respect to any
Mortgage
Loan, a per annum rate equal to the related Mortgage Rate
(excluding any default
interest or any rate increase occurring after an Anticipated
Repayment Date)
minus the related Administrative Cost Rate and minus, with respect
to each Co-op
Mortgage Loan, the Class X-Y Strip Rate for such Mortgage Loan;
provided that,
for purposes of calculating the Pass-Through Rate for each Class of
REMIC
Regular Certificates from time to time, the Net Mortgage Rate for
any Mortgage
Loan will be calculated without regard to any modification, waiver
or amendment
of the terms of such mortgage loan subsequent to the Closing Date.
In addition,
because the Certificates accrue interest on the basis of a 360-day
year
consisting of twelve 30-day months, when calculating the
Pass-Through Rate for
each Class of Certificates for each Distribution Date, the Net
Mortgage Rate on
a Non-30/360 Loan will be the annualized rate at which interest
would have to
accrue on the basis of a 360-day year consisting of twelve 30-day
months in
order to result in the accrual of the aggregate amount of interest
actually
accrued (exclusive of default interest or Excess Interest).
However, with
respect to each Non-30/360 Loan: (i) the Net Mortgage Rate that
would otherwise
be in effect for purposes of the Scheduled Payment due in January
of each year
(other than a leap year) and February of each year (unless such
Distribution
Date is the final Distribution Date) will be adjusted to take into
account the
applicable Interest Reserve Amount; and (ii) the Net Mortgage Rate
that would
otherwise be in effect for purposes of the Scheduled Payment due in
March of
each year (commencing in 2007), or February if the related
Distribution Date is
the final Distribution Date, will be adjusted to take into account
the related
withdrawal from the Interest Reserve Account for the preceding
January (if
applicable) and February.
"New Lease" means any lease of any REO Property entered into on
behalf
of the Trust, including any lease renewed or extended on behalf of
the Trust if
the Trust has the right to renegotiate the terms of such lease.
"Non-Investment Grade Certificates" means each Class of
Certificates
other than a Residual Certificate or a Class EI Certificate that,
at the time of
determination, is not rated in one of the four highest generic
rating categories
by at least Fitch or S&P.
"Non-Registered Certificate" means unless and until registered
under
the Securities Act, any Class X, Class X-Y, Class B, Class C, Class
D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O,
Class P, Class EI or Residual Certificate.
"Nondisqualification Opinion" means a written Opinion of Counsel to
the
effect that a contemplated action (i) will neither cause any REMIC
Pool to fail
to qualify as a REMIC at any time that any Certificates are
outstanding nor
cause a "prohibited transaction," "prohibited contribution" or any
other tax
(other than a tax on "net income from foreclosure property"
permitted to be
incurred under this Agreement) to be imposed on any REMIC Pool or
the Trust, and
(ii) will not cause the Class EI Grantor Trust to fail to qualify
as a grantor
trust.
"Noneconomic Residual Interest" means a residual interest that is
a
"noneconomic residual interest" within the meaning of Treasury
Regulations
Section 1.860E-1(c).
"Nonrecoverable Advance" means the portion of any Advance
(including
interest accrued thereon at the Advance Rate) or Unliquidated
Advance (not
including interest thereon) previously made (or, in the case of an
Unliquidated
Advance, not reimbursed to the Trust) or proposed to be made by a
Master
Servicer, a Special Servicer or the Trustee that, in its respective
sole
discretion, exercised in good faith and, with respect to such
Master Servicer
and such Special Servicer, in accordance with the Servicing
Standard, will not
be or, in the case of a current delinquency, would not be,
ultimately
recoverable, from Insurance Proceeds, Condemnation Proceeds,
Liquidation
Proceeds or Purchase Proceeds (or from any other collections) with
respect to
the related Mortgage Loan or REO Property, as evidenced by an
Officer's
Certificate delivered pursuant to Section 4.4. With respect to each
Mortgage
Loan that is cross-collateralized by Mortgaged Properties securing
other
Mortgage Loans, all of such Mortgaged Properties and other security
must be
considered in connection with any determination of whether an
Advance or
Unliquidated Advance is a Nonrecoverable Advance. Such Officer's
Certificate
shall be delivered to the Trustee (upon which the Trustee may
conclusively rely)
or to the Depositor (if the Trustee is delivering such Officer's
Certificate)
and (in either case) to the applicable Special Servicer and the
Trustee, in the
time periods as specified in Section 4.4 and shall include the
information and
reports set forth in Section 4.4. Absent bad faith, the applicable
Master
Servicer's determination as to the nonrecoverability of any Advance
shall be
conclusive and binding on the Certificateholders and may, in all
cases, be
relied on by the Trustee; provided, however, that the applicable
Special
Servicer may, at its option, make a determination in accordance
with the
Servicing Standard that any P&I Advance or Servicing Advance,
if made, would be
a Nonrecoverable Advance and shall deliver to the Master Servicer
and the
Trustee notice of such determination. Any such determination shall
be conclusive
and binding on the applicable Master Servicer and the Trustee;
provided,
however, the applicable Special Servicer shall have no such right
to make an
affirmative determination that any P&I Advance is or would be
recoverable and,
in the absence of a determination by the applicable Special
Servicer that such
Advance is or would be a Nonrecoverable Advance, the decision that
a P&I Advance
is recoverable shall remain with the applicable Master Servicer or
Trustee, as
applicable. Absent bad faith, such determination by the applicable
Special
Servicer shall be conclusive and binding on the Certificateholders,
the Master
Servicers and the Trustee. None of the Master Servicers, the
Special Servicers
or the Trustee will be obligated to make any Advance that, in its
judgment
(except in the case of the Trustee, in accordance with the
Servicing Standard),
would not ultimately be recoverable out of collections on the
related Mortgage
Loan. Absent bad faith or breach of the servicing standard under
the 2007-HQ11
Pooling and Servicing Agreement known to the General Master
Servicer or the
Trustee, as applicable, the determination as to the
nonrecoverability of any
principal and interest advance made or proposed to be made with
respect to the
Non-Trust-Serviced Companion Loan pursuant to the 2007-HQ11 Pooling
and
Servicing Agreement, shall be conclusive and binding on the
Certificateholders
and may, in all cases, be relied on by the Trustee and the General
Master
Servicer unless the Trustee or the General Master Servicer, as the
case may be,
has been advised by the 2007-HQ11 Trustee or the 2007-Master
Servicer that the
party who made such nonrecoverability determination no longer has
the required
rating under the 2007-HQ11 Pooling and Servicing Agreement. In
making any
nonrecoverability determination as described above, the relevant
party shall be
entitled (i) to consider (among other things) the obligations of
the Mortgagor
under the terms of the Mortgage Loan as it may have been modified,
(ii) to
consider (among other things) the related Mortgaged Properties in
their "as is"
then-current conditions and occupancies and such party's
assumptions (consistent
with the Servicing Standard in the case of the applicable Master
Servicer or the
applicable Special Servicer) regarding the possibility and effects
of future
adverse change with respect to such Mortgaged Properties, (iii) to
estimate and
consider, consistent with the Servicing Standard in the case of the
applicable
Master Servicer or the applicable Special Servicer (among other
things), future
expenses, (iv) to estimate and consider, consistent with the
Servicing Standard
in the case of the applicable Master Servicer or the applicable
Special Servicer
(among other things), the timing of recovery to such party and (v)
to consider
the amount of any deferred Advances outstanding. In addition, the
relevant party
may, consistent with the Servicing Standard in the case of the
applicable Master
Servicer or the applicable Special Servicer, update or change
its
nonrecoverability determinations at any time in accordance with the
terms hereof
and may, consistent with the Servicing Standard in the case of the
applicable
Master Servicer or the applicable Special Servicer, obtain from the
applicable
Special Servicer any analysis, appraisals or other information in
the possession
of such Special Servicer for such purposes.
"Non-Trust Serviced Companion Loan" means the RREEF Portfolio
Companion
Loan.
"Non-Trust Serviced Loan Group" means, collectively, the RREEF
Portfolio Pari Passu Loan and the REEF Portfolio Companion
Loan.
"Non-Trust Serviced Pari Passu Loan" means the RREEF Portfolio
Pari
Passu Loan.
"Notional Amount" means, as of any date of determination: (i)
with
respect to all of the Class X Certificates as a Class, the Class X
Notional
Amount as of such date of determination; (ii) with respect to any
Class X
Certificate, the product of the Percentage Interest evidenced by
such
Certificate and the Class X Notional Amount as of such date of
determination;
(iii) with respect to all of the Class X-Y Certificates as a Class,
the Class
X-Y Notional Amount as of such date of determination; (iv) with
respect to any
Class X-Y Certificate, the product of the Percentage Interest
evidenced by such
Certificate and the Class X-Y Notional Amount as of such date of
determination;
(v) with respect to any Group X-Y REMIC I Regular Interest, the
Principal
Balance of the related Specially Designated Co-op Mortgage Loan (or
any
successor REO Mortgage Loan), reduced by any Advances of principal
made with
respect to such Specially Designated Co-op Mortgage Loan and losses
thereon
previously allocated to Certificateholders; and (vi) with respect
to the REMIC
II Regular Interest X-Y, the Class X-Y Notional Amount, which is
equal to the
aggregate of the Notional Amounts with respect to all Group X-Y
REMIC I Regular
Interests.
"Officer's Certificate" means (v) in the case of the Depositor,
a
certificate signed by one or more of the Chairman of the Board, any
Vice
Chairman, the President, or any Senior Vice President, Vice
President or
Assistant Vice President, and by one or more of the Treasurer, any
Assistant
Treasurer, the Secretary or any Assistant Secretary of the
Depositor, or (w) in
the case of the applicable Master Servicer(s) and the applicable
Special
Servicer(s), any of the officers referred to above or an employee
thereof
designated as a Servicing Officer or Special Servicing Officer
pursuant to this
Agreement, (x) in the case of the Trustee, a certificate signed by
a Responsible
Officer, (y) in the case of a Seller, a certificate signed by one
or more of the
Chairman of the Board, any Vice Chairman, any Managing Director or
Director, the
President, or any Executive Vice President; Senior Vice President,
Second Vice
President, Vice President or Assistant Vice President, any
Treasurer, any
Assistant Treasurer or any Secretary or Assistant Secretary or any
other
authorized signatory and (z) in the case of the Trustee, a
certificate signed by
a Responsible Officer, each with specific responsibilities for the
matters
contemplated by this Agreement.
"Operating Adviser" shall have the meaning specified in Section
9.37(a).
"Opinion of Counsel" means a written opinion of counsel addressed
to
the applicable Master Servicer (and/or any Primary Servicer acting
on behalf of
such Master Servicer), the applicable Special Servicer or the
Trustee, as
applicable, reasonably acceptable in form and substance to such
Master Servicer
(and/or any Primary Servicer acting on behalf of such Master
Servicer), such
Special Servicer or the Trustee, as applicable, and who is not
in-house counsel
to the party required to deliver such opinion but who, in the good
faith
judgment of such Master Servicer (and/or any Primary Servicer
acting on behalf
of such Master Servicer), the applicable Special Servicer or the
Trustee, as
applicable, is Independent outside counsel knowledgeable of the
issues occurring
in the practice of securitization with respect to any such opinion
of counsel
concerning the taxation, or status as a REMIC for tax purposes, of
any REMIC
Pool or status as a "grantor trust" under the Grantor Trust
Provisions of the
Class EI Grantor Trust.
"Option" shall have the meaning specified in Section 9.36(a).
"Option Holder" shall have the meaning specified in Section
9.36(a).
"Option Purchase Price" shall have the meaning specified in
Section
9.36(b).
"OTS" shall mean the Office of Thrift Supervision or any
successor
thereto.
"Ownership Interest" means, as to any Certificate, any ownership
or
security interest in such Certificate as the Holder thereof and any
other
interest therein, whether direct or indirect, legal or beneficial,
as owner or
as pledgee.
"P&I Advance" shall mean, (i) with respect to any Mortgage Loan
or
Specially Serviced Mortgage Loan as to which all or a portion of
the Scheduled
Payment (net of the related Master Servicing Fees, Excess Servicing
Fees,
Primary Servicing Fees and other servicing fees payable from such
Scheduled
Payment), other than a Balloon Payment or any default interest, due
during the
related Collection Period was not received by the applicable Master
Servicer as
of the related Determination Date (subject to Section 5.1(h)), the
portion of
such Scheduled Payment not received; (ii) with respect to any
Balloon Mortgage
Loan (including any REO Mortgage Loan which provided for a Balloon
Payment) as
to which a Balloon Payment was due or deemed due during or prior to
the related
Collection Period but was delinquent, in whole or in part, as of
the related
Determination Date, an amount equal to the excess, if any, of the
Assumed
Scheduled Payment (net of the related Master Servicing Fee, Excess
Servicing
Fees, Primary Servicing Fees and other master or primary servicing
fees payable
from such Assumed Scheduled Payment) for such Balloon Mortgage Loan
for the
related Collection Period, over any Late Collections received in
respect of such
Balloon Payment during such Collection Period; and (iii) with
respect to each
REO Property, an amount equal to the excess, if any, of the Assumed
Scheduled
Payment for the REO Mortgage Loan related to such REO Property
during the
related Collection Period, over remittances of REO Income to the
applicable
Master Servicer by the applicable Special Servicer, reduced by any
amounts
required to be paid as taxes on such REO Income (including taxes
imposed
pursuant to Section 860G(c) of the Code); provided, however, that
the Scheduled
Payment or Assumed Scheduled Payment for any Mortgage Loan or REO
Mortgage Loan
which has been modified shall be calculated based on its terms as
modified and
provided, further, that the interest portion amount of any P&I
Advance with
respect to a Mortgage Loan as to which there has been an Appraisal
Reduction
shall be an amount equal to the product of (i) the amount with
respect to
interest required to be advanced without giving effect to this
proviso and (ii)
a fraction, the numerator of which is the Scheduled Principal
Balance of such
Mortgage Loan as of the immediately preceding Determination Date
less any
Appraisal Reduction applicable to such Mortgage Loan and the
denominator of
which is the Scheduled Principal Balance of such Mortgage Loan as
of such
Determination Date.
"P&I Advance Amount" means the amount of the P&I Advance
computed for
any Distribution Date.
"Pari Passu Loan Nonrecoverable Advance" means the pro rata portion
of
any "Nonrecoverable Advance" (as defined in the 2007-HQ11 Pooling
and Servicing
Agreement) allocable to the RREEF Portfolio Pari Passu Loan
pursuant to and in
accordance with the 2007-HQ11 Pooling and Servicing Agreement.
"Pari Passu Loan Servicing Fee Rate" means the servicing fee
rate
applicable to the Non-Trust Serviced Pari Passu Loan pursuant to
the 2007-HQ11
Pooling and Servicing Agreement.
"Participant" means a broker, dealer, bank, other financial
institution
or other Person for whom the Clearing Agency effects book-entry
transfers and
pledges of securities deposited with the Clearing Agency.
"Pass-Through Rate" or "Pass-Through Rates" means with respect to
any
Class of REMIC I Regular Interests, REMIC II Regular Interests or
REMIC Regular
Certificates, for the first Distribution Date, the rate set forth
in the
Preliminary Statement hereto. For any Distribution Date occurring
thereafter,
the Pass-Through Rates for (i)(A) the Group PB REMIC I Regular
Interests shall
equal their respective REMIC I Net Mortgage Rates and (B) the Group
X-Y REMIC I
Regular Interests, their respective Class X-Y Strip Rates on the
related
Specially Designated Co-op Mortgage Loan for such Distribution
Date, (ii)(A) the
REMIC II Regular Interests (other than REMIC II Regular Interest
X-Y) shall
equal the Weighted Average REMIC I Net Mortgage Rate and (B) the
REMIC II
Regular Interest X-Y shall equal the Weighted Average Class X-Y
Strip Rate for
such Distribution Date, (iii) each of the Class A-1, Class A-1A,
Class A-2,
Class A-3, Class A-4, Class A-M and Class A-J Certificates shall
equal the fixed
rate corresponding to such Class set forth in the Preliminary
Statement hereto,
(iv) each of the Class B, Class C, Class D and Class E Certificates
shall equal
a per annum rate equal to the fixed rate corresponding to such
Class set forth
in the Preliminary Statement hereto subject to a cap equal to the
Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (v)
the Class F,
Class G and Class H shall equal the the Weighted Average REMIC I
Net Mortgage
Rate, (vi) each of the Class J, Class K, Class L, Class M, Class N,
Class O and
Class P shall equal a per annum rate equal to the fixed rate
corresponding to
such Class set forth in the Preliminary Statement hereto, (x) the
Class X
Certificates shall equal the per annum rate equal to the weighted
average of
Class X Strip Rates for the Components for such Distribution Date
(weighted on
the basis of the respective Component Notional Amounts of such
Components
outstanding immediately prior to such Distribution Date), and (xi)
the Class X-Y
Certificates shall equal the Weighted Average Class X-Y Strip
Rate.
"Paying Agent" means U. S. Bank National Association, and any
successor
or assign, as provided herein.
"PCAOB" means the Public Company Accounting Oversight Board.
"Penalty Charges" means the default interest and/or late
payment
charges that are paid or payable, as the context may require, in
respect of any
Mortgage Loan or REO Mortgage Loan.
"Percentage Interest" means, with respect to each Class of
Certificates
other than the Residual Certificates, the fraction of such Class
evidenced by
such Certificate, expressed as a percentage (carried to four
decimal places and
rounded, if necessary), the numerator of which is the Certificate
Balance or
Notional Amount, as applicable, represented by such Certificate
determined as of
the Closing Date (as stated on the face of such Certificate) and
the denominator
of which is the Aggregate Certificate Balance or Notional Amount,
as applicable,
of all of the Certificates of such Class determined as of the
Closing Date. With
respect to each Residual Certificate, the percentage interest in
distributions
(if any) to be made with respect to the relevant Class, as stated
on the face of
such Certificate.
"Performing Party" has the meaning set forth in Section 13.12.
"Permitted Mezzanine Loan Holder": With respect to any mezzanine
loan,
the related Seller or any other holder of a mezzanine loan with
respect to which
each Rating Agency has confirmed in writing to the applicable
Special Servicer
and the Trustee that the holding of such mezzanine loan by such
Person would not
cause a qualification, downgrade or withdrawal of any of such
Rating Agency's
then-current ratings on the Certificates.
"Permitted Transferee" means any Transferee other than (i) a
Disqualified Organization, (ii) a United States Tax Person with
respect to whom
income from a Residual Certificate is attributable to a foreign
permanent
establishment or fixed base, within the meaning of an applicable
income tax
treaty, of such Person or any other United States Tax Person or
(iii) a United
States Tax Person treated as a partnership for federal income tax
purposes, any
partner of which, directly or indirectly (except through a U.S.
corporation), is
not (and is not required to be under the related partnership
agreement) a United
States Tax Person.
"Person" means any individual, corporation, limited liability
company,
partnership, joint venture, association, joint-stock company,
trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
"Phase I Environmental Report" means a report by an Independent
Person
who regularly conducts environmental site assessments in accordance
with then
current standards imposed by institutional commercial mortgage
lenders and who
has a reasonable amount of experience conducting such
assessments.
"Placement Agent" means Morgan Stanley & Co. Incorporated or
its
successor in interest.
"Plan" has the meaning set forth in Section 3.3(d).
"Preliminary Prospectus Supplement" has the meaning set forth in
the
Preliminary Statement hereto.
"Prepayment Interest Excess" means for any Distribution Date and
the
related Collection Period, during which a full or partial Principal
Prepayment
of a Mortgage Loan (including any payment of an unscheduled Balloon
Payment) is
made on or after the Due Date for such Mortgage Loan through and
including the
last day of the Collection Period (or, with respect to those
Mortgage Loans
listed on Schedule XIII, through and including the first Business
Day prior to
the Master Servicer Remittance Date), the amount of interest that
accrues on the
amount of such Principal Prepayment or Balloon Payment from such
Due Date to the
date such payment was made, plus (if made) any payment by the
related Mortgagor
of interest that would have accrued to the next succeeding Due Date
(net of the
amount of any Master Servicing Fee, the Primary Servicing Fees, the
Excess
Servicing Fees, any servicing fee payable in connection with the
Non-Trust
Serviced Pari Passu Loan (if applicable), the Special Servicing Fee
and the
Trustee Fee in each case, to the extent payable out of such
collection of
interest), to the extent collected.
"Prepayment Interest Shortfall" means, with respect to any
Distribution
Date, a shortfall in the collection of a full month's interest on
any Mortgage
Loan, by reason of a full or partial Principal Prepayment
(including any payment
of an unscheduled Balloon Payment) made during any Collection
Period prior to
the Due Date for such Mortgage Loan in such Collection Period
(including any
shortfall resulting from a payment during the grace period relating
to such Due
Date). The amount of any Prepayment Interest Shortfall shall equal
the excess of
(A) the aggregate amount of interest which would have accrued at
the REMIC I Net
Mortgage Rate on the Scheduled Principal Balance of such Mortgage
Loan for the
30 days ending on such Due Date if such Principal Prepayment or
Balloon Payment
had not been made (net of the Master Servicing Fee, the Primary
Servicing Fees,
the Excess Servicing Fees, any servicing fee payable in connection
with the
Non-Trust Serviced Pari Passu Loan (if applicable), the Special
Servicing Fee
and the Trustee Fee), plus, with respect to each Specially
Designated Co-op
Mortgage Loan, the related Class X-Y Strip Rate over (B) the
aggregate interest
that did so accrue at the REMIC I Net Mortgage Rate plus, with
respect to each
Specially Designated Co-op Mortgage Loan, the related Class X-Y
Strip Rate,
through the date such payment was made.
"Prepayment Premium" means, with respect to any Mortgage Loan for
any
Distribution Date, the prepayment premiums or percentage premiums,
if any,
received during a related Collection Period in connection with
Principal
Prepayments on such Mortgage Loan.
"Primary Collateral" means the portion of the Mortgaged
Property
securing the Repurchased Loan or Cross-Collateralized Loan, as
applicable, that
is encumbered by a first mortgage lien.
"Primary Servicers" means SunTrust Bank and its permitted
successors
and assigns.
"Primary Servicing Agreement" means the agreement between the
Primary
Servicer and the General Master Servicer, dated as of March 1,
2007, under which
the Primary Servicer services the Mortgage Loans set forth on the
schedule
attached thereto.
"Primary Servicing Fee" means, for each calendar month, as to
each
Mortgage Loan for which a Primary Servicing Fee is payable pursuant
to this
Agreement, the Primary Servicing Fee Rate multiplied by the
Scheduled Principal
Balance of such Mortgage Loan immediately before the Due Date
occurring in such
month, but prorated for the number of days during the calendar
month for such
Mortgage Loan for which interest actually accrues on such Mortgage
Loan and
payable only from collections on such Mortgage Loan.
"Primary Servicing Fee Rate" means, the rate per annum at which
the
monthly Primary Servicing Fee payable to the applicable Primary
Servicer (or the
applicable Master Servicer, as applicable) accrues, which rate is
the per annum
rate specified on the Mortgage Loan Schedule, as more specifically
described, in
the case of the Primary Servicers, in the applicable Primary
Servicing Agreement
(determined in the same manner (other than the rate of accrual) as
the
applicable Mortgage Rate is determined for such Mortgage Loan for
such month).
"Principal Balance" means, with respect to any Mortgage Loan or any
REO
Mortgage Loan, for purposes of performing calculations with respect
to any
Distribution Date, the principal balance of such Mortgage Loan or
the related
REO Mortgage Loan outstanding as of the Cut-Off Date after taking
into account
all principal and interest payments made or due prior to the
Cut-Off Date
(assuming, for any Mortgage Loan with a Cut-Off Date in March 2007
that is not
March 1, 2007, that principal and interest payments for such month
were paid on
March 1, 2007), reduced (to not less than zero) by (i) any payments
or other
collections of amounts allocable to principal on such Mortgage Loan
or any
related REO Mortgage Loan that have been collected or received
during any
preceding Collection Period, other than any Scheduled Payments due
in any
subsequent Collection Period, and (ii) any Realized Principal Loss
incurred in
respect of such Mortgage Loan or related REO Mortgage Loan, in each
case, during
any related and preceding Collection Period.
"Principal Balance Certificates" means, collectively, the Class
A-1,
Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class A-J,
Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L,
Class M, Class N, Class O and Class P Certificates.
"Principal Distribution Amount" means, on any Distribution Date,
the
amount equal to the excess, if any, of (I) the sum of:
(A) the
aggregate (without duplication) of the following amounts
received
with respect to the Mortgage Loans: (i) the principal portion
of
all
Scheduled Payments (other than the principal portion of Balloon
Payments)
and any Assumed Scheduled Payments, in each case, to the extent
received
or advanced, as the case may be, in respect of the Mortgage
Loans
and any
REO Mortgage Loans for their respective Due Dates occurring
during
the
related Collection Period; and (ii) all payments (including
Principal
Prepayments and the principal portion of Balloon Payments) and any
other
collections (including Liquidation Proceeds (other than the portion
thereof,
if any,
constituting Excess Liquidation Proceeds), Condemnation
Proceeds,
Insurance Proceeds, Purchase
Proceeds and REO Income) received on or in
respect of
the Mortgage Loans during the related Collection Period that
were
identified
and applied by the Master Servicer as recoveries of principal
thereof;
(B) the aggregate amount of any collections received on or in
respect of
the
Mortgage Loans that represents a delinquent amount as to which
an
Advance
had been made, which Advance or interest thereon was previously
reimbursed
during the Collection Period for a prior Distribution Date as
part of a
Workout-Delayed Reimbursement Amount for which a deduction was
made under
clause (II)(A) below with respect to such Distribution Date
(with
respect to
each such Mortgage Loan, allocated first to the Loan Group
Principal
Distribution Amount related to the Loan Group that does not
include
such Mortgage Loan, and then to the Loan Group Principal
Distribution Amount related to the Loan Group that includes such
Mortgage
Loan);
and
(C) the aggregate amount of any collections identified and applied
by
the
applicable Master Servicer as recoveries of principal and received
on or
in respect
of the Mortgage Loans during the related Collection Period
that,
in each
case, represents a recovery of an amount previously determined (in
a
Collection
Period for a prior Distribution Date) to have been a
Nonrecoverable Advance and for which a deduction was made under
clause
(II)(B)
below with respect to a prior Distribution Date (with respect
to
each such
Mortgage Loan, allocated first to the Loan Group Principal
Distribution Amount related to the Loan Group that does not include
such
Mortgage
Loan, and then to the Loan Group Principal Distribution Amount
related to the Loan Group
that includes such Mortgage Loan), and which are
applied
pursuant to Section 6.6(c)(i); over
(II) the sum of (with respect to each such Mortgage Loan,
allocated
first to the Loan Group Principal Distribution Amount applicable to
such
Mortgage Loan, and then to the other Loan Group Principal
Distribution Amount):
(A) the aggregate amount of Workout-Delayed Reimbursement Amounts
(and
Advance
Interest thereon) that was reimbursed or paid during the
related
Collection
Period to one or more of the applicable Master Servicer, the
applicable
Special Servicer and the Trustee from principal collections on
the
Mortgage Loans pursuant to subsection (iii) of Section 5.2(a)(II);
and
(B) the aggregate amount of Nonrecoverable Advances that was
reimbursed
or paid
during the related Collection Period to one or more of the
Master
Servicer,
the applicable Special Servicer and the Trustee during the
related
Collection
Period from principal collections on the Mortgage Loans
pursuant
to
subsection (iv) of Section 5.2(a)(II).
For purposes of the definition of "Principal Distribution Amount,"
the
Scheduled Payments and Principal Prepayments referred to in the
proviso in
Section 5.2(b) shall be deemed to have been collected in the prior
Collection
Period.
"Principal Prepayment" means any voluntary or involuntary payment
or
collection of principal on a Mortgage Loan which is received or
recovered in
advance of its scheduled Due Date and applied to reduce the
Principal Balance of
the Mortgage Loan in advance of its scheduled Due Date, including,
without
limitation, all proceeds, to the extent allocable to principal,
received from
the payment of cash in connection with a substitution shortfall
pursuant to
Section 2.3; provided that the pledge by a Mortgagor of Defeasance
Collateral
with respect to a Defeasance Loan shall not be deemed to be a
Principal
Prepayment.
"Private Placement Memorandum" means the Private Placement
Memorandum
dated March 22, 2007, pursuant to which the Class X, Class X-Y,
Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class
M, Class N, Class O and Class P Certificates will be offered for
sale.
"Prohibited Party": A party that is a proposed Servicing
Function
Participant that a Master Servicer, a Special Servicer or the
Trustee, as
applicable, seeks to retain as a Servicing Function Participant and
as to which
the Master Servicers, the Special Servicers or the Trustee, as
applicable, has
actual knowledge that such proposed party on any prior date failed
to comply
with its Exchange Act or Regulation AB obligations with respect to
the Subject
Securitization Transaction or any other commercial mortgage
securitization. In
addition, a Prohibited Party shall be any Person identified in
writing
(delivered prior to the date of retention) by the Depositor to the
Master
Servicers, the Special Servicers or the Trustee, as applicable,
that seeks to
retain such Person as a Person which the Depositor has knowledge
that such party
on any prior date failed to comply with its Exchange Act or
Regulation AB
obligations with respect to the Subject Securitization Transaction
or any other
commercial mortgage securitization.
"Projected Net Cash Flow" shall mean, with respect to any
Mortgaged
Property that is a residential cooperative property, projected net
operating
income at such Mortgaged Property, as set forth in the Appraisal
obtained with
respect to such Mortgaged Property in connection with the
origination of the
related Mortgage Loan (or an updated Appraisal, if required
hereunder), assuming
such Mortgaged Property was operated as a rental property with
rents set at
prevailing market rates taking into account the presence of
existing rent
controlled or rent stabilized occupants, reduced by underwritten
capital
expenditures, property operating expenses, a market rate vacancy
assumption and
projected reserves.
"Prospectus" has the meaning set forth in the Preliminary
Statement
hereto.
"PTCE" has the meaning set forth in Section 3.3(d).
"Purchase Price" means, with respect to (i) the repurchase,
pursuant to
Article II of this Agreement, by the applicable Seller of a
Mortgage Loan sold
by such Seller, (ii) the determination of fair value of an REO
Mortgage Loan
with respect to a liquidation by the Special Servicer pursuant to
Section 9.15
or (iii) the determination of fair value of a Mortgage Loan in
connection with a
purchase by the Option Holder pursuant to Section 9.36 under the
circumstances
described therein, a price equal to the sum of (A) 100% of the
unpaid Principal
Balance of such Mortgage Loan (or, deemed Principal Balance, in the
case of an
REO Mortgage Loan), plus (B) accrued but unpaid interest thereon
calculated at
the Mortgage Rate to and including, the Due Date in the Collection
Period in
which such purchase or liquidation occurs, plus (C) the amount of
any expenses
related to such Mortgage Loan or the related REO Property
(including any
Servicing Advances and Advance Interest (which have not been paid
by the
Mortgagor or out of Late Fees or default interest paid by the
related Mortgagor
on the related Mortgage Loan) and all unpaid Special Servicing Fees
and
Liquidation Fees paid or payable with respect to the Mortgage Loan
that are
reimbursable or payable to the applicable Master Servicer, the
applicable
Special Servicer, the Trustee, the 2007-HQ11 Master Servicer, the
2007-HQ11
Special Servicer or the 2007-HQ11 Trustee, plus (D) if such
Mortgage Loan or REO
Mortgage Loan is being repurchased or substituted for by a Seller
pursuant to
the related Mortgage Loan Purchase Agreement, all expenses
reasonably incurred
or to be incurred by the Primary Servicer, the applicable Master
Servicer, the
applicable Special Servicer, the Depositor or the Trustee in
respect of the
Material Breach or Material Document Defect giving rise to the
repurchase or
substitution obligation (and that are not otherwise included in (C)
above).
"Purchase Proceeds"
means any cash amounts received by the applicable
Master Servicer in connection with: (i) the repurchase of a
Mortgage Loan or an
REO Mortgage Loan by a Seller pursuant to Section 2.3, (ii) the
purchase by the
Option Holder of a Mortgage Loan pursuant to Section 9.36; (iii)
the purchase of
the Mortgage Loans and REO Properties by the Depositor, the
applicable Master
Servicer, the applicable Special Servicer or the holders of the
Class R-I
Certificates pursuant to Section 10.1(b); or (iv) if applicable,
the purchase of
a Mortgage Loan by a holder of a mezzanine loan under the related
mezzanine
intercreditor agreement.
"Qualified Bidder" means as used in section 8.29(c), a Person
qualified
to act as successor Master Servicer hereunder pursuant to Section
8.22(b)
(including the requirement set forth in Section 8.22(b) that Rating
Agency
Confirmation shall have been obtained from each Rating Agency with
respect to
such Person).
"Qualified Institutional Buyer" means a qualified institutional
buyer
qualifying pursuant to Rule 144A.
"Qualified Insurer" means, (i) with respect to any Mortgage Loan,
an
insurance company duly qualified as such under the laws of the
state in which
the related Mortgaged Property is located, duly authorized and
licensed in such
state to transact the applicable insurance business and to write
the insurance,
but in no event rated lower than "A" by Fitch, or if not so rated
by Fitch, then
Fitch has issued a Rating Agency Confirmation, and "A" by S&P,
or if not so
rated by S&P, then S&P has issued a Rating Agency
Confirmation, and (ii) with
respect to the Servicer Errors and Omissions Insurance Policy or
Servicer
Fidelity Bond an insurance company that has a claim paying ability
no lower than
"A" by S&P if rated by S&P, or if not so rated by S&P,
then A:IX by A. M. Best
or S&P has issued a Rating Agency Confirmation and "A" by Fitch
(or if such
company is not rated by Fitch, is rated at least A:IX by A.M.
Best's Key Rating
Guide) or (iii) in either case, a company not satisfying clause (i)
or (ii) but
with respect to which Rating Agency Confirmation is obtained from
Fitch and S&P.
"Qualified Insurer" shall also mean any entity that satisfies all
of the
criteria, other than the ratings criteria, set forth in one of the
foregoing
clauses and whose obligations under the related insurance policy
are guaranteed
or backed by an entity that satisfies the ratings criteria set
forth in such
clause (construed as if such entity were an insurance company
referred to
therein).
"Qualifying Substitute Mortgage Loan" means, in the case of a
Mortgage
Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan
which, on the date
of substitution, (i) has an outstanding principal balance, after
deduction of
the principal portion of the Scheduled Payment due in the month of
substitution,
not in excess of the Principal Balance of the Deleted Mortgage
Loan; provided,
however, that, to the extent that the principal balance of such
Mortgage Loan is
less than the Principal Balance of the Deleted Mortgage Loan, then
such
differential in principal amount, together with interest thereon at
the Mortgage
Rate on the related Mortgage Loan from the date as to which
interest was last
paid through the last day of the month in which such substitution
occurs, shall
be paid by the party effecting such substitution to the applicable
Master
Servicer for deposit into the applicable Certificate Account, and
shall be
treated as a Principal Prepayment hereunder; (ii) is accruing
interest at a rate
of interest at least equal to that of the Deleted Mortgage Loan;
(iii) has a
remaining term to stated maturity not greater than, and not more
than two years
less than, that of the Deleted Mortgage Loan; (iv) has (A) an
original
Loan-to-Value Ratio not higher than the lesser of (x) the current
Loan-to-Value
Ratio of the Deleted Mortgage Loan and (y) 75.0% and (B) has a
current Debt
Service Coverage Ratio equal to the greater of (x) the current Debt
Service
Coverage Ratio of the Deleted Mortgage Loan and (y) 1.25x; (v) will
comply with
all of the representations and warranties relating to Mortgage
Loans set forth
herein, as of the date of substitution; (vi) has a Phase I
Environmental Report
relating to the related Mortgaged Property in the related Mortgage
File and such
Phase I Environmental Report does not, in the good faith reasonable
judgment of
the applicable Special Servicer, exercised in a manner consistent
with the
Servicing Standard, raise material issues that have not been
adequately
addressed; (vii) has an engineering report relating to the related
Mortgaged
Property in its Mortgage Files and such engineering report does
not, in the good
faith reasonable judgment of the Special Servicer, exercised in a
manner
consistent with the Servicing Standard, raise material issues that
have not been
adequately addressed; (viii) is secured by a residential
cooperative property if
the Mortgage Loan substituted for a Deleted Mortgage Loan is a
Co-op Mortgage
Loan; and (ix) as to which the Trustee has received an Opinion of
Counsel, at
the related Seller's expense, that such Mortgage Loan is a
"qualified
replacement mortgage" within the meaning of Section 860G(a)(4) of
the Code;
provided that no Mortgage Loan may have a Maturity Date after the
date three
years prior to the Final Rated Distribution Date, and provided,
further, that no
such Mortgage Loan shall be substituted for a Deleted Mortgage Loan
unless
Rating Agency Confirmation is obtained, and provided, further, that
no such
Mortgage Loan shall be substituted for a Deleted Mortgage Loan
unless the
Operating Adviser shall have approved of such substitution
(provided, however,
that such approval of the Operating Adviser may not be unreasonably
withheld).
In the event that either one mortgage loan is substituted for more
than one
Deleted Mortgage Loan or more than one mortgage loan is substituted
for one or
more Deleted Mortgage Loans, then (A) the Principal Balance
referred to in
clause (i) above shall be determined on the basis of aggregate
Principal
Balances and (B) the rates referred to in clause (i) above and the
remaining
term to stated maturity referred to in clause (ii) above shall be
determined on
a weighted average basis; provided, however, that no individual
interest rate,
minus the Administrative Cost Rate, shall be lower than the highest
Pass-Through
Rate of any Class of Principal Balance Certificates then
outstanding having a
fixed rate. Whenever a Qualifying Substitute Mortgage Loan is
substituted for a
Deleted Mortgage Loan pursuant to this Agreement, the party
effecting such
substitution shall certify that such Mortgage Loan meets all of the
requirements
of this definition and shall send such certification to the
Trustee, which shall
deliver a copy of such certification to the Master Servicers, the
Special
Servicers, the Trustee and the Operating Adviser promptly, and in
any event
within five Business Days following the Trustee's receipt of such
certification.
"Rating Agencies" means Fitch and S&P.
"Rating Agency Confirmation" means, with respect to any matter,
confirmation in writing by each Rating Agency (or such Rating
Agency as is
specified herein) that a proposed action, failure to act, or other
event
specified herein will not in and of itself result in the
withdrawal, downgrade,
or qualification, as applicable, of the then-current rating
assigned by such
Rating Agency to any Class of Certificates then rated by such
Rating Agency.
"Realized Interest Loss" means, with respect to each Mortgage Loan
(i)
in the case of a Liquidation Realized Loss, the portion of any
Liquidation
Realized Loss that exceeds the Realized Principal Loss on the
related Mortgage
Loan, (ii) in the case of a Bankruptcy Loss, the portion of such
Realized Loss
attributable to accrued interest on the related Mortgage Loan,
(iii) in the case
of an Expense Loss, an Expense Loss resulting in any period from
the payment of
the Special Servicing Fee and any Expense Losses set forth in the
last sentence
of the definition of "Realized Principal Loss" or (iv) in the case
of a
Modification Loss, a Modification Loss described in clause (iii) of
the
definition thereof.
"Realized Loss" means a Liquidation Realized Loss, a Modification
Loss,
a Bankruptcy Loss or an Expense Loss with respect to a Mortgage
Loan. Realized
Losses on a Mortgage Loan are allocated first to the Principal
Balance of, and
then to interest on such Mortgage Loan.
"Realized Principal Loss" means, with respect to each Mortgage
Loan,
(i) in the case of a Liquidation Realized Loss, the amount of such
Realized
Loss, to the extent that it does not exceed the Principal Balance
of the
Mortgage Loan (or deemed Principal Balance, in the case of REO
Property), (ii)
in the case of a Modification Loss, the amount of such Modification
Loss
described in clause (i) of the definition thereof, (iii) in the
case of a
Bankruptcy Loss, the portion of such Realized Loss attributable to
the reduction
in the Principal Balance of the related Mortgage Loan, (iv) in the
case of an
Expense Loss, the portion thereof not treated as a Realized
Interest Loss and
(v) the amounts in respect thereof that are withdrawn from the
Certificate
Account pursuant to Section 6.6(b)(i). Notwithstanding clause (iv)
of the
preceding sentence, to the extent that Expense Losses (exclusive of
Expense
Losses resulting from payment of the Special Servicing Fee) exceed
amounts with
respect to a Mortgage Loan that were identified as allocable to
principal, such
excess shall be treated as a Realized Interest Loss.
"Record
Date" means, for each Distribution Date, with respect to each
Class of Certificates, the close of business on the last Business
Day of the
month immediately preceding the month in which such Distribution
Date occurs.
"Recoveries" means, as of any Distribution Date, any amounts
recovered
with respect to a Mortgage Loan or REO Property following the
period in which a
Final Recovery Determination occurs plus other amounts defined as
"Recoveries"
herein.
"Regulation AB" means Subpart 229.1100 - Asset Backed
Securities
(Regulation AB), 17 C.F.R. ss.ss. 229.1100-229.1123, as such may be
amended from
time to time, and subject to such clarification and interpretation
as have been
provided by the Commission in the adopting release (Asset-Backed
Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (Jan.
7, 2005)) or
by the staff of the Commission, or as may be provided by the
Commission or its
staff from time to time.
"Regulation S" means Regulation S under the 1933 Act.
"Regulation S Certificate" means a written certification
substantially
in the form set forth in Exhibit F hereto certifying that a
beneficial owner of
an interest in a Regulation S Temporary Global Certificate is not a
U.S. Person
(as defined in Regulation S).
"Regulation S Global Certificates" means the Regulation S
Permanent
Global Certificates together with the Regulation S Temporary
Global
Certificates.
"Regulation S Permanent Global Certificate" means any single
permanent
global Certificate, in definitive, fully registered form without
interest
coupons received in exchange for a Regulation S Temporary Global
Certificate.
"Regulation S Temporary Global Certificate" means, with respect to
any
Class of Certificates offered and sold outside of the United States
in reliance
on Regulation S, a single temporary global Certificate, in
definitive, fully
registered form without interest coupons.
"Rehabilitated Mortgage Loan" means any Specially Serviced
Mortgage
Loan with respect to which (i) three consecutive Scheduled Payments
have been
made (in the case of any such Mortgage Loan that was modified,
based on the
modified terms), or a complete defeasance shall have occurred, (ii)
no other
Servicing Transfer Event has occurred and is continuing (or with
respect to
determining whether a Required Appraisal Loan is a Rehabilitated
Mortgage Loan
for applying Appraisal Reductions, no other Appraisal Event has
occurred and is
continuing) and (iii) one of the following statements is true with
respect to
any cost incurred as a result of the occurrence of the Servicing
Transfer Event:
(a) the cost has been reimbursed to the Trust, (b) the Mortgagor's
obligation to
pay the cost has been forgiven, (c) the Mortgagor has agreed in
writing to
reimburse such costs or (d) the cost represents an amount that has
been the
subject of an Advance made with respect to the Mortgage Loan
following default,
the mortgage loan has been worked out under terms that do not
provide for the
repayment of such Advance in full upon the execution of the workout
arrangement
but the Mortgagor is nonetheless obligated under the terms of the
workout
arrangement to reimburse such Advance in the future.
"Release Date" means the date 40 days after the later of (i)
the
commencement of the offering of the Certificates and (ii) the
Closing Date.
"Relevant Servicing Criteria" means the Servicing Criteria
applicable
to each Reporting Servicer (as set forth, with respect to the
Master Servicers,
the Special Servicers, any Primary Servicer and the Trustee, on
Schedule XVI
attached hereto). For clarification purposes, multiple Reporting
Servicers can
have responsibility for the same Relevant Servicing Criteria and
some of the
Servicing Criteria will not be applicable to certain Reporting
Servicers. With
respect to a Servicing Function Participant engaged by the Trustee,
the Master
Servicers, the Special Servicers, any Primary Servicer or any
Reporting
Sub-Servicer, the term "Relevant Servicing Criteria" may refer to a
portion of
the Relevant Servicing Criteria applicable to the Trustee, the
Master Servicers,
the Special Servicers, any Primary Servicer or such Reporting
Sub-Servicer.
"REMIC" means a real estate mortgage investment conduit within
the
meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of the
Mortgage Loans (other than any Excess Interest payable thereon),
such amounts
related thereto as shall from time to time be held in the
Certificate Accounts,
the Interest Reserve Accounts, the Reserve Account and the
Distribution Account
(other than the portion thereof constituting Excess Interest
Sub-account or
funds held with respect to REMIC II or REMIC III), the related
Insurance
Policies and any related REO Properties, for which a REMIC election
has been
made pursuant to Section 12.1(a) hereof. The Non-Trust Serviced
Companion Loan
or any amounts payable thereon shall not constitute an asset of the
Trust or any
REMIC Pool formed hereunder.
"REMIC I Interests" means, collectively, the REMIC I Regular
Interests
and the Class R-I Certificates.
"REMIC I Net Mortgage Rate" means, with respect to any
Distribution
Date and any REMIC I Regular Interest, a rate per annum equal to
the Adjusted
Mortgage Rate for the related Mortgage Loan for such Distribution
Date (based on
the Mortgage Rate thereof (without taking into account any increase
therein
after the Anticipated Repayment Date in respect of an ARD Loan or
any default
interest rate), as of the Cut-Off Date and without regard to any
modification,
waiver or amendment of the terms thereof following the Cut-Off
Date) minus, with
respect to each Specially Designated Co-op Mortgage Loan, the Class
X-Y Strip
Rate.
"REMIC I Regular
Interests" means, collectively, the uncertificated
interests designated as "regular interests" in REMIC I, which shall
consist of,
with respect to (i) each Mortgage Loan (other than a Specially
Designated Co-op
Mortgage Loan), an interest having an initial Certificate Balance
equal to the
Cut-Off Date Scheduled Principal Balance of such Mortgage Loan, and
which has a
Pass-Through Rate equal to the REMIC I Net Mortgage Rate of such
Mortgage Loan
and (ii) with respect to each Specially Designated Co-op Mortgage
Loan, one
interest having an initial Certificate Balance equal to the Cut-Off
Date
Scheduled Principal Balance of such Specially Designated Co-op
Mortgage Loan,
and which has a Pass-Through Rate equal to the REMIC I Net Mortgage
Rate of such
Specially Designated Co-op Mortgage Loan and one interest having an
initial
Notional Amount equal to the Cut-Off Date Scheduled Principal
Balance of such
Specially Designated Co-op Mortgage Loan, and which has a
Pass-Through Rate
equal to the Class X-Y Strip Rate of such Specially Designated
Co-op Mortgage
Loan.
"REMIC II" means the segregated pool of assets consisting of the
REMIC
I Regular Interests and related amounts in the Distribution Account
for which a
REMIC election has been made pursuant to Section 12.1(a)
hereof.
"REMIC II Interests" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
"REMIC II Regular Interest A-1" means the uncertificated
interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having initial Certificate Balance as set forth in the
Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted
Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A" means the uncertificated
interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial Certificate Balance as set forth in the
Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted
Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-2" means the uncertificated
interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial Certificate Balance as set forth in the
Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted
Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3" means the uncertificated
interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial Certificate Balance as set forth in the
Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted
Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-4" means the uncertificated
interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial Certificate Balance as set forth in the
Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted
Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-M" means the uncertificated
interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial Certificate Balance as set forth in the
Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted
Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-J" means the uncertificated
interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial Certificate Balance as set forth in the
Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted
Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial Certificate Balance as set forth in the
Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted
Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest C" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial Certificate Balance as set forth in the
Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted
Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest D" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial Certificate Balance as set forth in the
Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted
Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest E" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial Certificate Balance as set forth in the
Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted
Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest F" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial Certificate Balance as set forth in the
Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted
Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest G" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial Certificate Balance as set forth in the
Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted
Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest H" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial Certificate Balance as set forth in the
Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted
Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial Certificate Balance as set forth in the
Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted
Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest K" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial Certificate Balance as set forth in the
Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted
Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest L" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial Certificate Balance as set forth in the
Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted
Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial Certificate Balance as set forth in the
Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted
Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest N" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial Certificate Balance as set forth in the
Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted
Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest O" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial Certificate Balance as set forth in the
Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted
Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest P" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having initial Certificate Balance as set forth in the
Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted
Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest X-Y" means the uncertificated
interest
designated as a "regular interest" in REMIC II, which shall consist
of an
interest having an initial notional amount equal to the initial
Class X-Y
Notional Amount, and which has a Pass-Through Rate equal to the
Weighted Average
Class X-Y Strip Rate.
"REMIC II Regular Interests" means, collectively, the REMIC II
Regular
Interest A-1, REMIC II Regular Interest A-1A, REMIC II Regular
Interest A-2,
REMIC II Regular Interest A-3, REMIC II Regular Interest A-4, REMIC
II Regular
Interest A-M, REMIC II Regular Interest A-J, REMIC II Regular
Interest B, REMIC
II Regular Interest C, REMIC II Regular Interest D, REMIC II
Regular Interest E,
REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC II
Regular
Interest H, REMIC II Regular Interest J, REMIC II Regular Interest
K, REMIC II
Regular Interest L, REMIC II Regular Interest M, REMIC II Regular
Interest N,
REMIC II Regular Interest O, REMIC II Regular Interest P and REMIC
II Regular
Interest X-Y.
"REMIC III" means the segregated pool of assets consisting of the
REMIC
II Regular Interests and related amounts in the Distribution
Account for which a
REMIC election has been made pursuant to Section 12.1(a)
hereof.
"REMIC III Certificates" has the meaning set forth in the
Preliminary
Statement hereto.
"REMIC Pool" means each of the three segregated pools of assets
designated as a REMIC pursuant to Section 12.1(b) hereof.
"REMIC Provisions" means the provisions of the federal income tax
law
relating to real estate mortgage investment conduits, which appear
at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and
related
provisions, and final, temporary and proposed regulations and
rulings
promulgated thereunder, as the foregoing may be in effect from time
to time and
taking account, as appropriate, of any proposed legislation or
regulations
which, as proposed, would have an effective date prior to enactment
or
promulgation thereof.
"REMIC Regular Certificates" means, collectively, the Class A-1,
Class
A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class A-J, Class
X, Class X-Y,
Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K,
Class L, Class M, Class N, Class O and Class P Certificates.
"Rent Loss Policy" means a policy of insurance generally
insuring
against loss of income or rent resulting from hazards or acts of
God.
"Rents from Real Property" means, with respect to any REO
Property,
income of the character described in Section 856(d) of the
Code.
"REO
Account" shall have the meaning set forth in Section 9.14(a)
hereof.
"REO Disposition" means the receipt by the Master Servicer or
the
Special Servicer of Liquidation Proceeds and other payments and
recoveries
(including proceeds of a final sale) from the sale or other
disposition of REO
Property.
"REO Income" means, with respect to any REO Property, except as
set
forth below, all income received in connection with such REO
Property during
such period less any operating expenses, utilities, real estate
taxes,
management fees, insurance premiums, expenses for maintenance and
repairs and
any other capital expenses directly related to such REO Property
paid during
such period. With respect to the Non-Trust Serviced Loan Group (if
the 2007-HQ11
Special Servicer has foreclosed upon the mortgaged properties
securing the
Non-Trust Serviced Pari Passu Loan), the REO Income includes only
the portion of
such net income that is paid to the holder of the Non-Trust
Serviced Pari Passu
Loan pursuant to the 2007-HQ11 Pooling and Servicing Agreement.
"REO Mortgage Loan" means a Mortgage Loan, as to which the
related
Mortgaged Property is an REO Property.
"REO Property" means a Mortgaged Property (or the Trust's
interest
therein, if the Mortgaged Property securing a Loan Group has been
acquired by
the Trust) acquired by the Trust through foreclosure, deed-in-lieu
of
foreclosure, abandonment or reclamation from bankruptcy in
connection with a
Defaulted Mortgage Loan or otherwise treated as foreclosure
property under the
REMIC Provisions.
"Report Date" means the close of business on the third Business
Day
before the related Distribution Date.
"Reporting Servicer" means the Master Servicers, the Special
Servicers,
any Primary Servicer, each Reporting Sub-Servicer, the Trustee and
any
Additional Servicer, as the case may be.
"Reporting Sub-Servicer" means any Person that (i) is a
Servicing
Function Participant, (ii) Services the assets of the Trust on
behalf of (a) the
Trust, (b) the Trustee, (c) the Master Servicers, (d) the Special
Servicers, (e)
any Additional Servicer or (f) any other Person that otherwise
constitutes a
"Sub-Servicer," and (iii) is responsible for the performance
(whether directly
or through sub-servicers or Subcontractors) of Servicing functions
that are
required to be performed by the Trustee, the Master Servicers, the
Special
Servicers or any Additional Servicer under this Agreement or any
sub-servicing
agreement and are identified in Item 1122(d) of Regulation AB. For
clarification
purposes, any Primary Servicer is a Reporting Sub-Servicer.
"Repurchased Loan" has the meaning set forth in Section 2.3(a)
hereof.
"Request for Release" means a request for release of certain
documents
relating to the Mortgage Loans, a form of which is attached hereto
as Exhibit C.
"Required Appraisal Loan" means any Mortgage Loan (other than
the
Non-Trust Serviced Pari Passu Loan) as to which an Appraisal Event
has occurred.
A Mortgage Loan (other than the Non-Trust Serviced Pari Passu Loan)
will cease
to be a Required Appraisal Loan at such time as it is a
Rehabilitated Mortgage
Loan.
"Reserve Account" shall mean the Reserve Account maintained by
the
Trustee in accordance with the provisions of Section 5.3, which
shall be an
Eligible Account, which may be a sub-account of the Distribution
Account.
"Residual Certificates" means, with respect to REMIC I, the Class
R-I
Certificates; with respect to REMIC II, the Class R-II
Certificates; and with
respect to REMIC III, the Class R-III Certificates.
"Responsible Officer" means, when used with respect to the
initial
Trustee, any officer of the Trustee with specific responsibilities
for the
matters contemplated by this Agreement and when used with respect
to any
successor Trustee, any Vice President, Assistant Vice President,
corporate trust
officer or any assistant corporate trust officer or Persons
performing similar
roles on behalf of the Trustee.
"Restricted Servicer Reports" means, collectively, to the extent
not
filed with the Commission, the CMSA Servicer Watch List, the CMSA
Operating
Statement Analysis Report, the CMSA NOI Adjustment Worksheet, CMSA
Financial
File and the CMSA Comparative Financial Status Report.
"Reverse Sequential Order" means sequentially to the Class P, Class
O,
Class N, Class M, Class L, Class K, Class J, Class H, Class G,
Class F, Class E,
Class D, Class C, Class B, Class A-J, Class A-M, and finally to the
Class X,
Class X-Y, Class A-1, Class A-1A, Class A-2, Class A-3 and Class
A-4
Certificates on a pro rata basis, as described herein.
"RREEF Portfolio Co-Lender Agreement" means the intercreditor
agreement
between the holder of the RREEF Portfolio Pari Passu Loan and the
holders of the
RREEF Portfolio Companion Loan.
"RREEF Portfolio Companion Loan" means, collectively, the four
notes
that are secured by the RREEF Portfolio Pari Passu Mortgage on a
pari passu
basis with the RREEF Portfolio Pari Passu Loan. The RREEF Portfolio
Companion
Loan is not a "Mortgage Loan."
"RREEF Portfolio Loan Group" means, collectively, the RREEF
Portfolio
Pari Passu Loan, the RREEF Portfolio Companion Loan and the RREEF
Portfolio A-6
Companion Loan (as applicable).
"RREEF Portfolio Pari Passu Loan" means Mortgage Loan No. 2 on
the
Mortgage Loan Schedule.
"RREEF Portfolio Pari Passu Mortgage" means the mortgage securing
the
RREEF Portfolio Pari Passu Loan and the RREEF Portfolio Companion
Loan.
"Rule 144A" means Rule 144A under the 1933 Act.
"Rule 144A IAI Global Certificate" means, with respect to any Class
of
Certificates offered and sold in reliance on Rule 144A or to
certain
Institutional Accredited Investors, a single, permanent global
Certificate, in
definitive, fully registered form without interest coupons.
"S&P" means Standard & Poor's Ratings Services, a division
of The
McGraw-Hill Companies, Inc. or its successor in interest.
"Sarbanes-Oxley Act" means the Sarbanes-Oxley Act of 2002 and the
rules
and regulations of the Commission promulgated thereunder (including
any
interpretations thereof by the Commission's staff).
"Sarbanes-Oxley Certification" has the meaning set forth in
Section
13.6.
"Scheduled Payment" means each scheduled payment of principal
of,
and/or interest on, a Mortgage Loan required to be paid on its Due
Date by the
Mortgagor in accordance with the terms of the related Mortgage Note
(excluding
all amounts of principal and interest which were due on or before
the Cut-Off
Date, whenever received, and taking account of any modifications
thereof and the
effects of any Debt Service Reduction Amounts and Deficient
Valuation Amounts).
"Scheduled Principal Balance" means, with respect to any Mortgage
Loan
or any REO Mortgage Loan, for purposes of performing calculations
with respect
to any Distribution Date, the Principal Balance thereof minus the
aggregate
amount of any P&I Advances of principal previously made with
respect to such
Mortgage Loan or such REO Mortgage Loan.
"Securities Act" means the Securities Act of 1933, as amended, and
the
rules and regulations thereunder.
"Seller" means MSMC, Natixis, NCB, FSB or SunTrust, as the case may
be.
"Seller Sub-Servicer": A Sub-Servicer or Additional Servicer
required
to be retained by a Master Servicer or Special Servicer, as
applicable, by a
Seller, as listed on Schedule XX hereto.
"Service(s)(ing)" means, in accordance with Regulation AB, the act
of
servicing and administering the Mortgage Loans or any other assets
of the Trust
by an entity that meets the definition of "servicer" set forth in
Item 1101 of
Regulation AB and is subject to the disclosure requirements set
forth in Item
1108 of Regulation AB. For clarification purposes, any
uncapitalized occurrence
of this term shall have the meaning commonly understood by
participants in the
commercial mortgage-backed securities market.
"Servicer Errors and Omissions Insurance Policy" or "Errors and
Omissions Insurance Policy" means an errors and omissions insurance
policy
maintained by each Master Servicer, each Special Servicer or the
Trustee, as the
case may be, in accordance with Section 8.2, Section 9.2 and
Section 7.17,
respectively.
"Servicer Fidelity Bond" or "Fidelity Bond" means a bond or
insurance
policy under which the insurer agrees to indemnify each Master
Servicer, each
Special Servicer or the Trustee, as the case may be, (subject to
standard
exclusions) for all losses (less any deductible) sustained as a
result of any
theft, embezzlement, fraud or other dishonest act on the part of a
Master
Servicer's, a Special Servicer's or the Trustee's, as the case may
be, officers
or employees and is maintained in accordance with Section 8.2,
Section 9.2 and
Section 7.17, respectively.
"Servicer Mortgage File" means (i) with respect to all Mortgage
Loans
other than the MSMC Loans, copies of the mortgage documents listed
in the
definition of Mortgage File relating to a Mortgage Loan, and (ii)
with respect
to the MSMC Loans, copies of the mortgage documents listed in the
definition of
Mortgage File relating to a Mortgage Loan and, to the extent
required to be (and
actually) delivered to the General Master Servicer by the
applicable Seller
pursuant to the applicable Mortgage Loan Purchase Agreement, copies
of the
following items: the Mortgage Note, any Mortgage, the Assignment of
Leases and
the Assignment of Mortgage, any guaranty/indemnity agreement, any
loan
agreement, any insurance policies or certificates (as applicable),
any property
inspection reports, any financial statements on the property, any
escrow
analysis, any tax bills, any Appraisal, any environmental report,
any
engineering report, any asset summary, financial information on
the
Mortgagor/sponsor and any guarantors, any letters of credit, any
intercreditor
agreement and any Environmental Insurance Policies.
"Servicing Advance" means any cost or expense of the Master
Servicers,
the Special Servicers or the Trustee, as the case may be,
designated as a
Servicing Advance pursuant to this Agreement and any other costs
and expenses
incurred by or for such Master Servicer, such Special Servicer or
the Trustee,
as the case may be, to protect and preserve the security for a
Mortgage Loan
(other than the Non-Trust Serviced Pari Passu Loan).
"Servicing Criteria" means the criteria set forth in paragraph (d)
of
Item 1122 of Regulation AB, as such may be amended from time to
time.
"Servicing Function Participant" means any Person, other than
the
Master Servicers, the Special Servicers and the Trustee that,
within the meaning
of Item 1122 of Regulation AB, is performing activities addressed
by the
Servicing Criteria, unless such Person's activities relate only to
5% or less of
the Mortgage Loans (based on their Principal Balance). For
clarification
purposes, each Primary Servicer is a Servicing Function
Participant.
"Servicing Officer" means, any officer or employee of the
Master
Servicers or Special Servicers involved in, or responsible for,
the
administration and servicing of the Mortgage Loans or this
Agreement and also,
with respect to a particular matter, any other officer to whom such
matter is
referred because of such officer's or employee's knowledge of and
familiarity
with the particular subject, and, in the case of any certification
required to
be signed by a Servicing Officer, such an officer or employee whose
name and
specimen signature appears on a list of servicing officers
furnished to the
Trustee by the Master Servicers or the Special Servicers, as
applicable, as such
list may from time to time be amended.
"Servicing Standard" means the standard by which the Master
Servicers
and Special Servicers will service and administer the Mortgage
Loans and/or REO
Properties that it is obligated to service and administer pursuant
to this
Agreement in the best interests and for the benefit of the
Certificateholders as
a collective whole (and as determined by the applicable Master
Servicer or the
applicable Special Servicer, as applicable, in its good faith and
reasonable
judgment), to perform such servicing and administration in
accordance with
applicable law, the terms of this Agreement, and the terms of the
respective
subject Mortgage Loans and, to the extent consistent with the
foregoing, further
as follows:
(i) with the same skill, care and diligence as is normal and usual
in
its
mortgage servicing activities on behalf of third parties or on
behalf of
itself,
whichever is higher, and in the case of a Special Servicer, its
REO
Property
management activities on behalf of third parties or on behalf
of
itself,
whichever is higher, with respect to mortgage loans that are
comparable
to the Mortgage Loans; and
(ii) with a view to the timely collection of all scheduled payments
of
principal
and interest under the Mortgage Loans and, in the case of a
Special
Servicer, if a serviced Mortgage Loan comes into and continues
in
default,
and if, in the judgment of such Special Servicer, no
satisfactory
arrangements can be made for the collection of the delinquent
payments, the
maximization of the recovery of principal and interest on that
Mortgage Loan
to the
Certificateholders, as a collective whole, on a net present
value
basis (the
relevant discounting of anticipated collections that will be
distributable to Certificateholders will be performed at the rate
determined
by the
Special Servicer but in any event not less than the related REMIC
I
Net
Mortgage Rate (plus, with respect to a Specially Designated
Co-op
Mortgage
Loan, the Class X-Y Strip Rate), in the case of the Mortgage
Loans;
but without regard to: (I) any relationship that a Master Servicer
or Special
Servicer, as the case may be, or any Affiliate thereof may have
with the related
Mortgagor; (II) the ownership of any Certificate by a Master
Servicer or Special
Servicer, as the case may be, or any Affiliate thereof; (III) a
Master
Servicer's obligation to make P&I Advances or Servicing
Advances; (IV) a Special
Servicer's obligation to request that a Master Servicer make
Servicing Advances;
(V) the right of a Master Servicer (or any Affiliate thereof) or
Special
Servicer (or any Affiliate thereof), as the case may be, to
receive
reimbursement of costs, or the sufficiency of any compensation
payable to it
under this Agreement or with respect to any particular transaction;
and (VI)
except with respect to the General Master Servicer, any obligation
of the NCB
Master Servicer or any of its Affiliates (in their capacity as a
Seller) to cure
a breach of a representation or warranty or repurchase any Mortgage
Loan.
"Servicing Transfer Event" means the occurrence of any of the
following
events: (i) a payment default shall have occurred on a Mortgage
Loan (other than
the Non-Trust Serviced Pari Passu Loan) (x) at its Maturity Date
(except, with
respect to the NCB, FSB Loans, if (a) the Borrower is making its
regularly
scheduled monthly payments, (b) the Borrower notifies the
applicable Master
Servicer (who shall forward such notice to the other Master
Servicer, the
applicable Special Servicer and the Operating Adviser) of its
intent to
refinance such Mortgage Loan and is diligently pursuing such
refinancing, (c)
the Borrower delivers a firm commitment to refinance acceptable to
the Operating
Adviser on or prior to the Maturity Date, and (d) such refinancing
occurs within
60 days of such default, which 60-day period may be extended to 120
days at the
Operating Adviser's discretion) or (y) if any other payment is more
than 60 days
past due or has not been made on or before the second Due Date
following the
date such payment was due; (ii) any Mortgage Loan (other than the
Non-Trust
Serviced Pari Passu Loan) as to which, to the applicable Master
Servicer's or
applicable Special Servicer's knowledge, the Mortgagor has
consented to the
appointment of a receiver or conservator in any insolvency or
similar proceeding
of, or relating to, such Mortgagor or to all or substantially all
of its
property, or the Mortgagor has become the subject of a decree or
order issued
under a bankruptcy, insolvency or similar law and such decree or
order shall
have remained undischarged, undismissed or unstayed for a period of
30 days;
(iii) any Mortgage Loan (other than the Non-Trust Serviced Pari
Passu Loan) as
to which the applicable Master Servicer or applicable Special
Servicer shall
have received notice of the foreclosure or proposed foreclosure of
any other
lien on the Mortgaged Property; (iv) any Mortgage Loan (other than
the Non-Trust
Serviced Pari Passu Loan) as to which the applicable Master
Servicer or
applicable Special Servicer has knowledge of a default (other than
a failure by
the related Mortgagor to pay principal or interest) which in the
good faith
reasonable judgment of such Master Servicer or applicable Special
Servicer
materially and adversely affects the interests of the
Certificateholders and
which has occurred and remains unremedied for the applicable grace
period
specified in such Mortgage Loan (or, if no grace period is
specified, 60 days);
(v) any Mortgage Loan as to which the Mortgagor admits in writing
its inability
to pay its debts generally as they become due, files a petition to
take
advantage of any applicable insolvency or reorganization statute,
makes an
assignment for the benefit of its creditors or voluntarily suspends
payment of
its obligations; and (vi) any Mortgage Loan (other than the
Non-Trust Serviced
Pari Passu Loan) as to which, in the good faith reasonable judgment
(in
accordance with the Servicing Standard) of the applicable Master
Servicer or
Special Servicer, (a) a payment default is imminent or is
reasonably foreseeable
(except to the extent that, in the good faith reasonable judgment
(in accordance
with the Servicing Standard) of the applicable Master Servicer or
Special
Servicer, such imminent or reasonably foreseeable default is likely
to be cured
within the periods described in clause (i) above) or (b) any other
default is
imminent or is reasonably foreseeable and such default, in the
judgment of such
Master Servicer or Special Servicer, is reasonably likely to
materially and
adversely affect the interests of the Certificateholders.
"Significant Mortgage Loan" means a Mortgage Loan which has a
Principal
Balance (together with any other Mortgage Loan with which it is
cross-collateralized) equaling or exceeding 5% of the Aggregate
Certificate
Balance or exceeds $35,000,000 or is one of the then current top 10
loans (by
Principal Balance) in the Mortgage Pool.
"Significant Obligor" means a "significant obligor" as defined
in
Regulation AB. As of the date hereof, the Mortgagor under the
75-101 Federal
Street Loan is a Significant Obligor.
"Similar Laws" has the meaning set forth in Section 3.3(d).
"Single-Purpose Entity" means a Person, other than an individual,
whose
organizational documents provide substantially to the effect that
it is formed
or organized solely for the purpose of owning and collecting
payments from
Defeasance Collateral for the benefit of the Trust and which (i)
does not engage
in any business unrelated thereto and the financing thereof; (ii)
does not have
any assets other than those related to its interest in Defeasance
Collateral;
(iii) maintains its own books, records and accounts, in each case
which are
separate and apart from the books, records and accounts of any
other Person;
(iv) conducts business in its own name and uses separate
stationery, invoices
and checks; (v) does not guarantee or assume the debts or
obligations of any
other Person; (vi) does not commingle its assets or funds with
those of any
other Person; (vii) transacts business with Affiliates on an arm's
length basis
pursuant to written agreements; and (viii) holds itself out as
being a legal
entity, separate and apart from any other Person, and otherwise
complies with
the single-purpose requirements established by the Rating Agencies.
The entity's
organizational documents also provide that any dissolution and
winding up or
insolvency filing for such entity requires the unanimous consent of
all partners
or members, as applicable, and that such documents may not be
amended with
respect to the Single-Purpose Entity requirements.
"Sole Certificateholder" means any Certificateholder (or
Certificateholders provided they act in unanimity) holding 100% of
the then
outstanding Class X, Class X-Y, Class J, Class K, Class L, Class M,
Class N,
Class O, Class P and Class EI Certificates or an assignment of the
voting rights
thereof; provided, however, that the Certificate Balances of the
Class A-1,
Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class A-J,
Class B,
Class C, Class D, Class E, Class F, Class G and Class H
Certificates have been
reduced to zero.
"Special Servicer" means: (a) with respect to any Mortgage Loan
(other
than a Co-op Mortgage Loan), any REO Property acquired by the Trust
with respect
to a Mortgage Loan (other than a Co-op Mortgage Loan) and any
matters relating
to the foregoing, the General Special Servicer and (b) with respect
to any Co-op
Mortgage Loan, any REO Property acquired by the Trust with respect
to a Co-op
Mortgage Loan and any matters relating to the foregoing, the Co-op
Special
Servicer.
"Special Servicer
Compensation" means, with respect to any applicable
period, the sum of the Special Servicing Fees, the Liquidation Fees
and Work-Out
Fees and any other amounts to be paid to a Special Servicer
pursuant to the
terms of this Agreement.
"Special Servicer Remittance Date" means the Business Day
preceding
each Determination Date.
"Special Servicing Fee" means, for each calendar month, as to
each
Mortgage Loan (other than the Non-Trust Serviced Pari Passu Loan)
that is a
Specially Serviced Mortgage Loan (including REO Mortgage Loans),
the fraction or
portion of the Special Servicing Fee Rate applicable to such month
(determined
using the same interest accrual methodology that is applied with
respect to the
Mortgage Rate for such Mortgage Loan for such month) multiplied by
the Scheduled
Principal Balance of such Specially Serviced Mortgage Loan
immediately before
the Due Date occurring in such month.
"Special Servicing Fee Rate" means 0.35% per annum, with a minimum
of
$4,000 per month per Specially Serviced Mortgage Loan or REO
Property.
"Special Servicing Officer" means any officer or employee of
the
applicable Special Servicer involved in, or responsible for, the
administration
and servicing of the Specially Serviced Mortgage Loans whose name
and specimen
signature appear on a list of servicing officers or employees
furnished to the
Trustee and the applicable Master Servicer by such Special Servicer
signed by an
officer of such Special Servicer, as such list may from time to
time be amended.
"Specially Designated Co-op Mortgage Loan" means, any Co-op
Mortgage
Loan or any successor REO Mortgage Loan.
"Specially Serviced Mortgage Loan" means, as of any date of
determination, any Mortgage Loan with respect to which a Servicing
Transfer
Event has occurred and is continuing. Promptly upon a Mortgage Loan
becoming a
Specially Serviced Mortgage Loan, the applicable Master Servicer
shall be
responsible to deliver to the applicable Special Servicer all
information,
documents and records relating to such Mortgage Loan, as reasonably
requested by
such Special Servicer to enable it to assume its duties with
respect to such
Mortgage Loan. A Specially Serviced Mortgage Loan shall cease to be
a Specially
Serviced Mortgage Loan from and after the date on which the
applicable Special
Servicer notifies the applicable Master Servicer, the Operating
Adviser and the
Trustee, in accordance with Section 8.1(b), that such Mortgage
Loan, with
respect to such Servicing Transfer Event, has become a
Rehabilitated Mortgage
Loan, unless and until such Master Servicer notifies such Special
Servicer and
the Trustee, in accordance with Section 8.1(b) that another
Servicing Transfer
Event with respect to such Mortgage Loan exists or occurs.
"Standard Hazard Insurance Policy" means a fire and casualty
extended
coverage insurance policy in such amount and with such coverage as
required by
this Agreement.
"Sub-Servicer" has the meaning set forth in Section 8.4(b).
"Sub-Servicing Agreement" means a Sub-Servicing Agreement, or any
other
agreement between a Master Servicer or Primary Servicer and a
Sub-Servicer, with
respect to the servicing, primary servicing or sub-servicing of one
or more
Mortgage Loans.
"Subcontractor" means any vendor, subcontractor or other Person
that is
not responsible for the overall servicing of Mortgage Loans but
performs one or
more discrete functions identified in Item 1122(d) of Regulation AB
with respect
to Mortgage Loans under the direction or authority of the Master
Servicers, the
Special Servicers, an Additional Servicer, a Reporting Sub-Servicer
or the
Trustee.
"Subject Securitization Transaction" shall mean the commercial
mortgage
securitization transaction contemplated by this Agreement.
"Subordinate Certificates" means, collectively, the Class A-M,
Class
A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J,
Class K, Class L, Class M, Class N, Class O and Class P
Certificates.
"Successful Bidder" has the meaning set forth in Section
8.29(d).
"SunTrust" has the meaning assigned in the Preliminary
Statement
hereto.
"SunTrust Loans" means, collectively, those Mortgage Loans sold to
the
Depositor pursuant to the Mortgage Loan Purchase Agreement III and
shown on
Schedule III hereto.
"Tax Matters Person" means the Person designated as the "tax
matters
person" of the related REMIC Pool pursuant to Treasury Regulations
Section
1.860F-4(d) and Temporary Treasury Regulations Section
301.6231(a)(7)-1T.
"Termination Price" has the meaning set forth in Section
10.1(b)
herein.
"30/360 basis" means any Mortgage Loan that accrues interest on
the
basis of a 360-day year consisting of twelve 30-day months.
"Title Insurance Policy" means a title insurance policy maintained
with
respect to a Mortgage Loan.
"Transfer" means any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership
Interest in a
Certificate.
"Transferee" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Trust" or "Trust Fund" means the trust created pursuant to
this
Agreement and designated "Morgan Stanley Capital I Trust
2007-IQ13," the assets
of which consist of all the assets of REMIC I (including the
related Mortgage
Loans (other than Excess Interest thereon), such related amounts as
shall from
time to time be held in the Certificate Accounts, the Distribution
Account
(other than the Excess Interest Sub-Account), the Interest Reserve
Account, the
Reserve Account, the REO Accounts, the Trustee's rights under the
Insurance
Policies, any REO Properties (or the Trust's interest in a
Mortgaged Property
acquired under the 2007-HQ11 Pooling and Servicing Agreement) and
other items
referred to in Section 2.1(a) hereof, in each case to the extent
allocable to
the related Mortgage Loan), the REMIC I Regular Interests, the
REMIC II Regular
Interests, Excess Interest and the Excess Interest Sub-Account. The
Trust shall
not include the Non-Trust Serviced Companion Loan.
"Trustee" means U.S. Bank National Association, as trustee, or
its
successor-in-interest, or if any successor trustee, or any
co-trustee shall be
appointed as herein provided, then "Trustee" shall also mean such
successor
trustee (subject to Section 7.7 hereof) and such co trustee
(subject to Section
7.9 hereof), as the case may be.
"Trustee Fee" means for each calendar month, as to each Mortgage
Loan
(including REO Mortgage Loans and Defeasance Loans), the portion of
the Trustee
Fee Rate applicable to such month (determined using the same
interest accrual
methodology (other than the rate of accrual) that is applied with
respect to the
Mortgage Rate for such Mortgage Loan for such month) multiplied by
the Scheduled
Principal Balance of each such Mortgage Loan immediately before the
Due Date
occurring in such month.
"Trustee Fee Rate" means 0.0085% per annum.
"Trustee Mortgage File" means the mortgage documents listed in
the
definition of Mortgage File hereof pertaining to a particular
Mortgage Loan and
any additional documents required to be added to the Mortgage File
pursuant to
this Agreement; provided that whenever the term "Trustee Mortgage
File" is used
to refer to documents actually received by the Trustee or a
Custodian on its
behalf, such terms shall not be deemed to include such documents
required to be
included therein unless they are actually so received.
"Trustee's Website" has the meaning set forth in Section 5.4(a)
hereof.
"UCC" means the Uniform Commercial Code as in effect from time to
time
in the State of New York.
"Underwriter" means each of Morgan Stanley & Co. Incorporated,
Banc of
America Securities LLC, Natixis Securities North America Inc.
(formerly IXIS
Securities North America Inc.), Merrill Lynch, Pierce, Fenner &
Smith
Incorporated and SunTrust Capital Markets, Inc., or their
respective
successors-in-interest.
"United States Person" means (i) any natural person resident in
the
United States, (ii) any partnership or corporation organized or
incorporated
under the laws of the United States or any state thereof or the
District of
Columbia, (iii) any estate of which an executor or administrator is
a United
States Person (other than an estate governed by foreign law and of
which at
least one executor or administrator is a non-United States Person
who has sole
or shared investment discretion with respect to its assets), (iv)
any trust of
which any trustee is a United States Person (other than a trust of
which at
least one trustee is a non-United States Person and has sole or
shared
investment discretion with respect to its assets), (v) any agency
or branch of a
foreign entity located in the United States, (vi) any
non-discretionary or
similar account (other than an estate or trust) held by a dealer or
other
fiduciary for the benefit or account of a United States Person,
(vii) any
discretionary or similar account (other than an estate or trust)
held by a
dealer or other fiduciary organized, incorporated or (if an
individual) resident
in the United States (other than such an account held for the
benefit or account
of a non-United States Person), (viii) any partnership or
corporation organized
or incorporated under the laws of a foreign jurisdiction and formed
by a United
States Person principally for the purpose of investing in
securities not
registered under the 1933 Act (unless it is organized or
incorporated, and
owned, by accredited investors within the meaning of Rule 501(A)
under the 1933
Act who are not natural persons, estates or trusts); provided,
however, that the
term "United States Person" shall not include (A) a branch or
agency of a United
States Person that is located and operating outside the United
States for valid
business purposes as a locally regulated branch or agency engaged
in the banking
or insurance business, (B) any employee benefit plan established
and
administered in accordance with the law, customary practices and
documentation
of a foreign country and (C) the international organizations set
forth in
Section 902(o)(7) of Regulation S under the 1933 Act and any other
similar
international organizations, and their agencies, Affiliates and
pension plans.
"United States Tax Person" means any of (i) a citizen or resident
of
the United States, (ii) corporation or partnership (except to the
extent
provided in applicable Treasury Regulations) created or organized
in or under
the laws of the United States or any State thereof or the District
of Columbia,
including any entity treated as such a corporation or partnership
for federal
income tax purposes, (iii) an estate the income of which is
includible in gross
income for United States tax purposes, regardless of its source or
(iv) a trust
if a court within the United States is able to exercise primary
supervision over
the administration of such trust, and one or more United States Tax
Persons has
the authority to control all substantial decisions of such trust
(or to the
extent provided in applicable Treasury Regulations, a trust in
existence on
August 20, 1996, which is eligible to elect to be treated as a
United States Tax
Person).
"Unliquidated Advance" means any Advance previously made by a
party
hereto that has been previously reimbursed to the Person that made
the Advance
by the Trust as part of a Workout-Delayed Reimbursement Amount
pursuant to
subsection (iii) of Section 5.2(a)(II), but that has not been
recovered from the
Mortgagor or otherwise from collections on or the proceeds of the
Mortgage Loan
or REO Property in respect of which the Advance was made.
"Unpaid Interest" means, on any Distribution Date with respect to
any
Class of Interests or Certificates (excluding the Residual
Certificates and the
Class EI Certificates), the portion of Distributable Certificate
Interest for
such Class remaining unpaid as of the close of business on the
preceding
Distribution Date, plus one month's interest thereon at the
applicable
Pass-Through Rate.
"Unrestricted Servicer Reports" means, collectively, the CMSA
Delinquent Loan Status Report, CMSA Historical Loan Modification
and Corrected
Mortgage Loan Report, CMSA Historical Liquidation Report, CMSA Loan
Periodic
Update File, CMSA Loan Setup File, CMSA Bond Level File, CMSA
Collateral Summary
File, CMSA Reconciliation of Funds Report, CMSA REO Status Report,
CMSA Loan
Level Reserve/LOC Report, CMSA Advance Recovery Report, CMSA Total
Loan Report
and, if and to the extent filed with the Commission, such reports
and files as
would, but for such filing, constitute Restricted Master Servicer
Reports.
"USAP" has
the meaning set forth in Section 13.10 herein.
"Weighted Average Class X-Y Strip Rate" means, with respect to
any
Distribution Date, the weighted average of the Class X-Y Strip
Rates for each of
the Group X-Y REMIC I Regular Interests, weighted on the basis of
their
respective Notional Amounts as of the close of business on the
preceding
Distribution Date.
"Weighted Average REMIC I Net Mortgage Rate" means, with respect to
any
Distribution Date, the weighted average of the REMIC I Net Mortgage
Rates for
the Group PB REMIC I Regular Interests, weighted on the basis of
their
respective Certificate Balance as of the close of business on the
preceding
Distribution Date.
"Work-Out Fee" means a fee payable with respect to any
Rehabilitated
Mortgage Loan (other than the Non-Trust Serviced Pari Passu Loan),
equal to the
product of (x) 1.00% and (y) the amount of each collection of
interest (other
than default interest and Excess Interest) and principal received
(including any
Condemnation Proceeds received and applied as a collection of such
interest and
principal) on such Mortgage Loan so long as it remains a
Rehabilitated Mortgage
Loan or otherwise payable as set forth in Section 9.21(d).
"Workout-Delayed Reimbursement Amount" has the meaning set forth
in
subsection (II)(A) of Section 5.2(a).
"Yield Maintenance Charges" means, with respect to any
Distribution
Date, the aggregate of all yield maintenance charges, if any,
received during
the related Collection Period in connection with Principal
Prepayments.
"Yield Maintenance Minimum Amount" means, with respect to a
Mortgage
Loan that provides for a Yield Maintenance Charge to be paid in
connection with
any Principal Prepayment thereon or other early collection of
principal thereof,
any specified amount or specified percentage of the amount prepaid
which
constitutes the minimum amount that such Yield Maintenance Charge
may be.
Section 1.2 Calculations Respecting Mortgage Loans
(a) Calculations required to be made by the Trustee pursuant to
this
Agreement with respect to any Mortgage Loan shall be made based
upon current
information as to the terms of such Mortgage Loan and reports of
payments
received from the applicable Master Servicer on such Mortgage Loan
and payments
to be made to the Trustee as supplied to the Trustee by such Master
Servicer.
The Trustee shall not be required to recompute, verify or
recalculate the
information supplied to it by the applicable Master Servicer and
may
conclusively rely upon such information in making such
calculations. If,
however, a Responsible Officer of the Trustee has actual knowledge
of an error
in the calculations, the Trustee shall inform the applicable Master
Servicer of
such error.
(b) Unless otherwise required by law or the applicable Mortgage
Loan
documents, any amounts (other than escrow and reserve deposits
and
reimbursements of Servicing Advances and expenses) received in
respect of a
Mortgage Loan as to which a default has occurred and is continuing
(other than
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds,
Purchase
Proceeds and REO Income) shall be applied as follows: first, to
overdue interest
due with respect to such Mortgage Loan at the Mortgage Rate
thereof, second, to
current interest due with respect to such Mortgage Loan at the
Mortgage Rate
thereof, third, to the reduction of the Principal Balance of such
Mortgage Loan
to zero if such Mortgage Loan has been accelerated, and in respect
of any
scheduled payments of principal then due to the extent that such
Mortgage Loan
has not yet been accelerated, fourth, to any default interest and
other amounts
due on such Mortgage Loan and fifth, to Late Fees due with respect
to such
Mortgage Loan. The foregoing allocations are intended to govern
loan level
allocations but shall not govern allocations of such amounts at the
trust level
for the purpose of determining Principal Distribution Amounts or
Distributable
Certificate Interest.
Liquidation Proceeds, Insurance Proceeds, Condemnation
Proceeds,
Purchase Proceeds and REO Income shall be applied as follows:
first, as a
recovery of any related and unreimbursed Advances (together with
interest
thereon) and Unliquidated Advances (to the Trust), and if
applicable, unpaid
Liquidation Expenses; second, as a recovery of unpaid servicing
compensation;
third, as a recovery of any Additional Trust Expenses, fourth, as a
recovery of
any Nonrecoverable Advances thereon, except with respect to any
Unliquidated
Advance previously reimbursed from principal pursuant to Section
5.2(a)(II)(iv);
fifth, as a recovery of any remaining accrued and unpaid interest
on such
Mortgage Loan at the related Mortgage Rate to, but not including,
the date of
receipt (or, in the case of a full monthly payment from any
Mortgagor, through
the related Due Date); sixth, as a recovery of any remaining
principal of such
Mortgage Loan then due and owing, including by reason of
acceleration of the
Mortgage Loan following a default thereunder (or, if a Liquidation
Event has
occurred in respect of such Mortgage Loan, as a recovery of
principal to the
extent of its entire remaining unpaid Principal Balance); seventh,
unless a
Liquidation Event has occurred with respect to such Mortgage Loan,
as a recovery
of amounts to be currently applied to the payment of real estate
taxes,
assessments, insurance premiums (including premiums on any
Environmental
Insurance Policy), ground rents (if applicable) and similar items;
eighth, as a
recovery of any Late Fees and default interest then due and owing
under such
Mortgage Loan; ninth, as a recovery of any Prepayment Premium or
Yield
Maintenance Charge then due and owing under such Mortgage Loan;
tenth, as a
recovery of any assumption fees, Modification Fees and extension
fees then due
and owing under such Mortgage Loan; and eleventh, as a recovery of
any other
amounts then due and owing under such Mortgage Loan.
(c) Notwithstanding the foregoing applications of amounts received
by
or on behalf of the Trust in respect of any Mortgage Loan, any
amounts due and
owing under the related Mortgage Note and Mortgage (including for
principal and
accrued and unpaid interest) shall be applied in accordance with
the express
provisions of the related Mortgage Loan documents.
Section 1.3 Calculations Respecting Accrued Interest
Accrued interest on any Certificate shall be calculated based upon
a
360-day year consisting of twelve 30-day months. Pass-Through Rates
shall be
carried out to eight decimal places, rounded if necessary. All
dollar amounts
calculated hereunder shall be rounded to the nearest penny.
Section 1.4 Interpretation
(a) Whenever the Agreement refers to a Distribution Date and a
"related" Collection Period, Interest Accrual Period, Record Date,
Due Date,
Report Date, Monthly Certificateholders Report, Special Servicer
Remittance
Date, Master Servicer Remittance Date or Determination Date, such
reference
shall be to the Collection Period, Interest Accrual Period, Record
Date, Due
Date, Report Date, Special Servicer Remittance Date, Master
Servicer Remittance
Date or Determination Date, as applicable, immediately preceding
such
Distribution Date.
(b) As used herein and in any certificate or other document made
or
delivered pursuant hereto or thereto, accounting terms not defined
in Section
1.1 shall have the respective meanings given to them under
generally accepted
accounting principles or regulatory accounting principles, as
applicable.
(c) The words "hereof," "herein" and "hereunder," and words of
similar
import, when used in this Agreement, shall refer to this agreement
as a whole
and not to any particular provision of this Agreement, and
references to
Sections, Schedules and Exhibits contained in this Agreement are
references to
Sections, Schedules and Exhibits in or to this Agreement unless
otherwise
specified.
(d) Whenever a term is defined herein, the definition ascribed to
such
term shall be equally applicable to both the singular and plural
forms of such
term and to masculine, feminine and neuter genders of such
term.
(e) This Agreement is the result of arm's-length negotiations
between
the parties and has been reviewed by each party hereto and its
counsel. Each
party agrees that any ambiguity in this Agreement shall not be
interpreted
against the party drafting the particular clause which is in
question.
Section 1.5 ARD Loans
Notwithstanding any provision of this Agreement:
(a) For the ARD Loans, the Excess Interest accruing as a result of
the
step-up in the Mortgage Rate upon failure of the related Mortgagor
to pay the
principal on the Anticipated Repayment Date as specifically
provided for in the
related Mortgage Note shall not be taken into account for purposes
of the
definitions of "Appraisal Reduction," "Assumed Scheduled Payment,"
"Mortgage
Rate," "Purchase Price" and "Realized Loss."
(b) Excess Interest shall constitute an asset of the Trust but not
an
asset of any REMIC Pool.
(c) Neither a Master Servicer nor a Special Servicer shall take
any
enforcement action with respect to the payment of Excess Interest
unless the
taking of such action is consistent with the Servicing Standard and
all other
amounts due under such Mortgage Loan have been paid, and, in the
good faith and
reasonable judgment of such Master Servicer and such Special
Servicer, as the
case may be, the Liquidation Proceeds expected to be recovered in
connection
with such enforcement action will cover the anticipated costs of
such
enforcement action and, if applicable, any associated interest
thereon.
(d) Liquidation Fees shall not be deemed to be earned on Excess
Interest.
(e) With respect to each ARD Loan after its Anticipated Repayment
Date,
the respective Master Servicer or the respective Special Servicer,
as the case
may be, shall be permitted, in its discretion, to waive in
accordance with
Section 14.1 and Section 14.2 hereof, all or any accrued Excess
Interest if,
prior to the related Maturity Date, the related Mortgagor has
requested the
right to prepay the Mortgage Loan in full together with all
payments required by
the Mortgage Loan in connection with such prepayment except for all
or a portion
of accrued Excess Interest, provided that the respective Master
Servicer's or
the respective Special Servicer's determination to waive the right
to such
accrued Excess Interest is in accordance with the Servicing
Standard and with
Section 14.1 and Section 14.2 hereof. The respective Master
Servicer or the
respective Special Servicer, as the case may be, will have no
liability to the
Trust, the Certificateholders or any other Person so long as such
determination
is based on such criteria.
Section 1.6 Certain Matters Relating to the Non-Trust-Serviced
Pari
Passu Loan
With respect to the Non-Trust-Serviced Pari Passu Loan, in the
event
that the General Master Servicer or the Trustee receives notice
from any of
Moody's, Fitch or S&P that the General Master Servicer or the
Trustee, as
applicable, is no longer approved by such Rating Agency as to its
eligibility
requirements hereunder, the General Master Servicer or the Trustee,
as
applicable, shall be required to notify each of the other parties
to this
Agreement and the 2007-HQ11 Master Servicer of the same.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans
(a) Effective as of the Closing Date, the Depositor does hereby
assign
in trust to the Trustee, without recourse, for the benefit of
the
Certificateholders all the right, title and interest of the
Depositor, in, to
and under (i) the Mortgage Loans identified on the Mortgage Loan
Schedule, (ii)
the Depositor's rights under each Mortgage Loan Purchase Agreement
that are
permitted to be assigned to the Trustee pursuant to Section 14
thereof, (iii)
the Depositor's rights under the Co-Lender Agreement and the
2007-HQ11 Pooling
and Servicing Agreement, and (iv) all other assets included or to
be included in
REMIC I for the benefit of REMIC II and REMIC III. Such assignment
includes all
interest and principal received or receivable on or with respect to
the Mortgage
Loans and due after the Cut-Off Date. The transfer of the Mortgage
Loans and the
related rights and property accomplished hereby is absolute and is
intended by
the parties to constitute a sale. In connection with the initial
sale of the
Certificates by the Depositor, the purchase price to be paid
includes a portion
attributable to interest accruing on the Certificates from and
after the Cut-Off
Date. The transfer and assignment of the Non-Trust-Serviced Pari
Passu Loan to
the Trustee and the right to service such Mortgage Loan is subject
to the terms
and conditions of the 2007-HQ11 Pooling and Servicing Agreements
and the
Co-Lender Agreement.
(b) In connection with the Depositor's assignment pursuant to
Section
2.1(a) above, the Depositor shall direct, and hereby represents and
warrants
that it has directed, each Seller pursuant to the applicable
Mortgage Loan
Purchase Agreement to deliver to and deposit with, or cause to be
delivered to
and deposited with, the Trustee or a Custodian appointed hereunder,
on or before
the Closing Date, the Mortgage Note for each Mortgage Loan so
assigned, endorsed
to the Trustee as specified in clause (i) of the definition of
"Mortgage File."
Each Seller is required, pursuant to the applicable Mortgage Loan
Purchase
Agreement, to deliver to the Trustee the remaining documents
constituting the
Mortgage File for each Mortgage Loan (or, with respect to the
Non-Trust-Serviced
Pari Passu Loan, copies thereof) within the time period set forth
therein. None
of the Trustee, any Custodian, any Master Servicer or any Special
Servicer shall
be liable for any failure by any Seller or the Depositor to comply
with the
document delivery requirements of the Mortgage Loan Purchase
Agreements and this
Section 2.1(b).
(c) Each Seller other than Natixis and NCB, FSB, at its own
expense,
for the Mortgage Loans sold to the Depositor by such Seller, and
the Trustee, at
the expense of Natixis and NCB, FSB, as applicable, for the Natixis
Loans sold
to the Depositor by Natixis, and the NCB, FSB Loans sold to the
Depositor by
NCB, FSB, shall promptly (and in any event within 90 days following
the receipt
of all recording information necessary to record such document)
cause to be
submitted for recording or filing, as the case may be, in the
appropriate public
office for real property records or UCC financing statements, as
appropriate,
each assignment to the Trustee referred to in clauses (iv), (vi)
and (ix)(B) of
the definition of "Mortgage File" (except with respect to the
Non-Trust-Serviced
Pari Passu Loan). Each such assignment shall reflect that it should
be returned
by the public recording office to the Trustee following recording
or filing or
such party responsible for recording such assignment shall be
responsible for
forwarding such assignment to the Trustee (except with respect to
any Mortgage
File document recorded in the name of MERS or its designee);
provided that in
those instances where the public recording office retains the
original
Assignment of Mortgage, assignment of Assignment of Leases or
assignment of UCC
financing statements, the Trustee shall obtain therefrom, at the
expense of the
applicable Seller, a certified copy of the recorded original and
shall forward
copies thereof to the applicable Master Servicer and the applicable
Special
Servicer. If any such document or instrument is lost or returned
unrecorded or
unfiled, as the case may be, because of a defect therein, the
Trustee shall
promptly notify the applicable Seller and the applicable Seller for
its
respective Mortgage Loans shall promptly prepare or cause to be
prepared and
delivered to the Trustee a substitute therefor or cure such defect,
as the case
may be, and thereafter the Trustee shall upon receipt thereof from
such Seller
cause the same to be duly recorded or filed, as appropriate.
The parties acknowledge the obligation of each Seller pursuant
to
Section 2 of the related Mortgage Loan Purchase Agreement to
deliver to the
Trustee, on or before the fifth Business Day after the Closing
Date, five
limited powers of attorney substantially in the form attached as
Exhibit C to
the Primary Servicing Agreements or Exhibit 5 to the Mortgage Loan
Purchase
Agreements in favor of the Trustee, the applicable Master Servicer
and the
applicable Special Servicer to empower the Trustee, such Master
Servicer and, in
the event of the failure or incapacity of the Trustee and such
Master Servicer,
such Special Servicer, to submit for recording, at the expense of
the applicable
Seller, any mortgage loan documents required to be recorded as
described in the
preceding paragraph and any intervening assignments with evidence
of recording
thereon that are required to be included in the Mortgage Files (so
long as
original counterparts have previously been delivered to the
Trustee). The
Sellers agree to reasonably cooperate with the Trustee, the Master
Servicer and
the Special Servicer in connection with any additional powers of
attorney or
revisions thereto that are requested by such parties for purposes
of such
recordation. The Trustee and each other party hereto agrees that no
such power
of attorney shall be used with respect to any Mortgage Loan by or
under
authorization by any party hereto except that to the extent that
the absence of
a document described in the second preceding sentence with respect
to such
Mortgage Loan remains unremedied as of the earlier of (i) the date
that is 180
days following the delivery of notice of such absence to the
related Seller, but
in no event earlier than 18 months from the Closing Date, and (ii)
the date (if
any) on which such Mortgage Loan becomes a Specially Serviced
Mortgage Loan. The
Trustee shall submit such documents for recording, at the related
Seller's
expense, after the periods set forth above; provided, however, the
Trustee shall
not submit such assignments for recording if the applicable Seller
produces
evidence that it has sent any such assignment for recording and
certifies that
it is awaiting its return from the applicable recording office.
(d) All relevant servicing or loan documents and records in the
possession of the Depositor or the Sellers that relate to the
servicing of any
Mortgage Loans and that are not required to be a part of a Mortgage
File in
accordance with the definition thereof and are reasonably necessary
for the
ongoing administration and/or servicing of the applicable Mortgage
Loan shall be
delivered to the Master Servicer (with a copy to the related
Primary Servicer,
if applicable), on or before the date that is 75 days following the
Closing Date
and shall be held by such Master Servicer or the related Primary
Servicer on
behalf of the Trustee in trust for the benefit of the
Certificateholders. To the
extent delivered to the Master Servicer and the related
Sub-Servicer or the
related Primary Servicer, as applicable, by the related Seller, the
Servicer
Mortgage File will consist of the documents listed in the
definition of Mortgage
File; provided, however, the Seller shall not be required to
deliver any draft
documents, attorney-client privileged communications, internal
correspondence or
credit analysis. Delivery of any of the foregoing documents to the
applicable
Primary Servicer (or sub-servicer) shall be deemed delivery to the
applicable
Master Servicer and satisfy the Depositor's obligations under this
Section
2.1(d). Each of the foregoing items may be delivered in electronic
form, to the
extent such document is available in such form and such form is
reasonably
acceptable to the applicable Master Servicer. None of any Master
Servicer, any
Special Servicer or any Primary Servicer shall have any liability
for the
absence of any of the foregoing items from the Servicing Mortgage
File if such
item was not delivered by the related Seller.
(e) In connection with the Depositor's assignment pursuant to
Section
2.1(a) above, the Depositor shall deliver to the Trustee and the
Master Servicer
on or before the Closing Date a copy of a fully executed
counterpart of each
Mortgage Loan Purchase Agreement, as in full force and effect on
the Closing
Date, which Mortgage Loan Purchase Agreements shall contain the
representations
and warranties made by the Sellers with respect to each related
Mortgage Loan as
of the Closing Date.
(f) In connection herewith, the Depositor has acquired the MSMC
Loans
from MSMC, the Natixis Loans from Natixis, the NCB, FSB Loans from
NCB, FSB, and
the SunTrust Loans from SunTrust. The Depositor will deliver the
original
Mortgage Notes (or lost note affidavits with copies of the related
Mortgage
Notes, as described in the definition of Mortgage File) relating to
the MSMC
Loans to the Trustee, endorsed as otherwise provided herein, to
effect the
transfer to the Trustee of such Mortgage Notes and all related
deeds of trust,
mortgages and other loan documents. The Depositor will deliver the
original
Mortgage Notes (or lost note affidavits with copies of the related
Mortgage
Notes, as described in the definition of Mortgage File) relating to
the Natixis
Loans to the Trustee, endorsed as otherwise provided herein, to
effect the
transfer to the Trustee of such Mortgage Notes and all related
deeds of trust,
mortgages and other loan documents. The Depositor will deliver the
original
Mortgage Notes (or lost note affidavits with copies of the related
Mortgage
Notes, as described in the definition of Mortgage File) relating to
the NCB, FSB
Loans to the Trustee, endorsed as otherwise provided herein, to
effect the
transfer to the Trustee of such Mortgage Notes and all related
deeds of trust,
mortgages and other loan documents. The Depositor will deliver the
original
Mortgage Notes (or lost note affidavits with copies of the related
Mortgage
Notes, as described in the definition of Mortgage File) relating to
the SunTrust
Loans to the Trustee, endorsed as otherwise provided herein, to
effect the
transfer to the Trustee of such Mortgage Notes and all related
deeds of trust,
mortgages and other loan documents. To avoid the unnecessary
expense and
administrative inconvenience associated with the execution and
recording of
multiple assignment documents, MSMC, Natixis, NCB, FSB and
SunTrust, as
applicable, are required under the Mortgage Loan Purchase
Agreements to deliver
Assignments of Mortgages and assignments of Assignments of Leases
and
assignments of UCC financing statements in blank or naming the
Trustee, on
behalf of the Certificateholders, as assignee. Notwithstanding the
fact that the
assignments shall be in blank or name the Trustee, on behalf of
the
Certificateholders, as the assignee, the parties hereto acknowledge
and agree
that for all purposes the MSMC Loans shall be deemed to have been
transferred
from MSMC to the Depositor, the Natixis Loans shall be deemed to
have been
transferred from Natixis to the Depositor, the NCB, FSB Loans shall
be deemed to
have been transferred from NCB, FSB to the Depositor, the SunTrust
Loans shall
be deemed to have been transferred from SunTrust to the Depositor,
and all
Mortgage Loans shall be deemed to have been transferred from the
Depositor to
the Trustee on behalf of the Certificateholders.
With respect to the Non-Trust-Serviced Pari Passu Loan, the
related
Mortgage File (exclusive, however, of the original Mortgage Note),
together with
certain other documents and records, and all unapplied Escrow
Payments and
Reserve Funds, in the possession of the Depositor or the related
Seller that
relate to such Mortgage Loan has been delivered to the 2007-HQ11
Trustee in
accordance with the Co-Lender Agreement and the 2007-HQ11 Pooling
and Servicing
Agreement. Such documents and funds shall be held thereby on behalf
of the
Trustee and the holders of the Non-Trust Serviced Companion
Loan.
(g) With respect to the Mortgage Loans for which the first
monthly
payment date will not occur until May 2007, an interest only
payment at the
applicable Net Mortgage Rate will be funded by the applicable
Seller under the
terms of the related Mortgage Loan Purchase Agreement on the
Closing Date. The
Depositor shall deliver such advance interest amount to the Trustee
in
connection with the Depositor's assignment pursuant to Section
2.1(a) above.
Section 2.2 Acceptance by Trustee
The Trustee will hold (i) the documents constituting a part of
the
Mortgage Files delivered to it, (ii) the REMIC I Regular Interests,
(iii) the
REMIC II Regular Interests, in each case, in trust for the use and
benefit of
all present and future Certificateholders; and (iv) the assets of
the Class EI
Grantor Trust in trust for the use and benefit of the present and
future Holders
of the Class EI Certificates.
On the Closing Date in respect of the Initial Certification, and
within
90 days after the Closing Date in respect of the Final
Certification, the
Trustee shall examine the Mortgage Files in its possession, and
shall deliver to
the Depositor, the Sellers, the Master Servicers, the Special
Servicers and the
Operating Adviser, a certification (the "Initial Certification" and
the "Final
Certification," respectively, in the respective forms set forth as
Exhibit B-1
and Exhibit B-2 hereto), which shall be in electronic format (i) in
the case of
the Initial Certification, as to each Mortgage Loan listed in the
Mortgage Loan
Schedule, except as may be specified in the schedule of exceptions
to Mortgage
File delivery attached thereto, to the effect that: (A) all
documents pursuant
to clause (i) of the definition of Mortgage File are in its
possession, (B) such
documents have been reviewed by it and have not been materially
mutilated,
damaged, defaced, torn or otherwise physically altered, and such
documents
relate to such Mortgage Loan, and (C) each Mortgage Note has been
endorsed as
provided in clause (i) of the definition of Mortgage File, and (ii)
in the case
of the Final Certification, as to each Mortgage Loan listed in the
Mortgage Loan
Schedule, except as may be specified in the schedule of exceptions
to Mortgage
File delivery attached thereto, to the effect that: (A) all
documents pursuant
to clauses (i), (ii), (iv), (vi), (viii) and (xii) of the
definition of Mortgage
File required to be included in the Mortgage File (to the extent
required to be
delivered pursuant to this Agreement and any applicable Primary
Servicing
Agreement), and with respect to all documents specified in the
other clauses of
the definition of Mortgage File to the extent actually known by a
Responsible
Officer of the Trustee to be required pursuant to this Agreement
(assuming that,
with respect to the documents referred to in clause (xii) of the
definition of
Mortgage File, an original letter of credit in the possession of
the Trustee is
not so required, unless a Responsible Officer of the Trustee has
actual
knowledge to the contrary), are in its possession, (B) such
documents have been
reviewed by it and have not been materially mutilated, damaged,
defaced, torn or
otherwise physically altered, and such documents relate to such
Mortgage Loan,
(C) based on its examination and only as to the Mortgage Note and
Mortgage or
the appraisal of the related Mortgaged Property, the street address
of the
Mortgaged Property set forth in the Mortgage Loan Schedule
respecting such
Mortgage Loan accurately reflects the information contained in the
documents in
the Mortgage File, (D) each Mortgage Note has been endorsed as
required by the
terms of this Agreement and (E) the Trustee on behalf of the Trust
is shown as
the owner of each Mortgage recorded in the name of MERS.
Notwithstanding the
foregoing, the delivery of an original or a copy of a binder, pro
forma policy
or title commitment certified by the title company in lieu of the
delivery of
the actual Title Insurance Policy shall not be considered a
Material Document
Defect with respect to any Mortgage File. The Trustee shall deliver
to the
Master Servicers, the Special Servicers, the Operating Adviser and
each Seller a
copy of such Final Certification, which may be in electronic
format.
Within 360 days after the Cut-Off Date, the Trustee shall provide
a
confirmation of receipt of recorded assignments of Mortgage (as
described in the
definition of Mortgage File, with evidence of recording thereon) or
otherwise
provide evidence of such recordation to the applicable Master
Servicer, the
applicable Special Servicer, the Operating Adviser and each Seller,
and if any
recorded assignment of Mortgage has not been received by the
Trustee by such
time, the Trustee shall provide information in such confirmation on
the status
of missing assignments. The Trustee agrees to use reasonable
efforts to submit
for recording any unrecorded assignments of Mortgage that have been
delivered to
it (including effecting such recordation process through or
cooperating with the
applicable Seller) such recordation to be at the expense of the
applicable
Seller; provided, however, that the Trustee shall not submit for
recording any
such assignments if the applicable Seller produces evidence that it
has sent any
such assignment for recording and is awaiting its return from the
applicable
recording office. In giving the certifications required above, the
Trustee shall
be under no obligation or duty to inspect, review or examine any
such documents,
instruments, securities or other papers to determine whether they
or the
signatures thereon are valid, legal, genuine, enforceable, in
recordable form or
appropriate for their represented purposes, or that they are other
than what
they purport to be on their face, or to determine whether any
Mortgage File
should include any assumption agreement, modification agreement,
consolidation
agreement, extension agreement, Assignment of Lease, ground lease,
UCC financing
statement, guaranty, written assurance, substitution agreement,
lock-box
agreement, intercreditor agreement, management agreement or letter
of credit.
If any exceptions are noted on a schedule of exceptions attached to
the
Final Certification, including exceptions resulting from the fact
that the
recordation and/or filing has not been completed (based solely on
the absence of
receipt by the Custodian (or the Trustee) of the particular
documents showing
evidence of the recordation and/or filing), then the Custodian on
behalf of the
Trustee (or the Trustee) shall continuously update such schedule of
exceptions
to reflect receipt of any corrected documents, additional documents
or
instruments or evidences of recordation and/or filing, as to each
Mortgage Loan,
until the earliest of the following dates: (i) the date on which
all such
exceptions are eliminated (any such elimination resulting from the
fact that
recordation and/or filing has been completed shall be based solely
on receipt by
the Custodian or the Trustee of the particular documents showing
evidence of the
recordation and/or filing), (ii) the date on which all the affected
Mortgage
Loans are removed from the Trust and (iii) the second anniversary
of the Closing
Date, and shall provide such updated schedule of exceptions (which
may be in
electronic format) to each of the Depositor, each Seller (as to its
respective
Mortgage Loans only), the applicable Master Servicer, the
applicable Special
Servicer and the Operating Adviser on or about the date that is 180
days after
the Closing Date and then again every 90 days thereafter (until the
earliest
date specified above, except, with respect to clause (iii) above,
the Trustee
shall continue to provide such updated schedule of exceptions
annually after
such date). The Trustee shall promptly forward a copy thereof to
each
Certificateholder in the Controlling Class and shall deliver or
make available a
copy thereof to other Certificateholders pursuant to Sections
5.4(e) and 5.4(f).
Promptly, and in any event within two Business Days, following any
request
therefor by the Depositor, the applicable Master Servicer, the
applicable
Special Servicer or the Operating Adviser that is made later than
two years
following the Closing Date, the Custodian (or the Trustee) shall
deliver an
updated schedule of exceptions, which may be in electronic format
(to the extent
the prior schedule showed exceptions), to the requesting Person and
the Trustee,
which shall make available a copy thereof pursuant to Section
5.4(e).
The Trustee or its authorized agents shall retain possession
and
custody of each Trustee Mortgage File in accordance with and
subject to the
terms and conditions set forth herein.
The Master Servicer agrees to hold all of the original letters
of
credit, which are part of the Mortgage File, in trust for the
benefit of the
Trust Fund.
Section 2.3 Repurchase of Mortgage Loans for Material Document
Defects
and Material Breaches of Representations and Warranties
(a) If any party hereto discovers that any document or
documents
constituting a part of a Mortgage File has not been delivered as
and when
required (and including the expiration of any grace or cure
period), has not
been properly executed, or is defective on its face or discovers or
receives
notice of a breach of any of the representations and warranties
relating to the
Mortgage Loans required to be made by a Seller regarding the
characteristics of
the Mortgage Loans and/or related Mortgaged Properties as set forth
in the
related Mortgage Loan Purchase Agreements, and in either case such
defect or
breach either (i) materially and adversely affects the interests of
the holders
of the Certificates in the related Mortgage Loan, or (ii) both (A)
the document
defect or breach materially and adversely affects the value of the
Mortgage Loan
and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or
Rehabilitated
Mortgage Loan (such a document defect described in the preceding
clause (i) or
(ii), a "Material Document Defect," and such a breach described in
the preceding
clause (i) or (ii), a "Material Breach") such party shall give
prompt written
notice to the other parties hereto and to each Rating Agency
subject to the
terms of the applicable Mortgage Loan Purchase Agreement. Promptly
(but in any
event within three Business Days) upon becoming aware of any such
Material
Document Defect or Material Breach, the applicable Master Servicer
shall, and
the applicable Special Servicer may, request that the related
Seller, not later
than 90 days from such Seller's receipt of the notice of such
Material Document
Defect or Material Breach, cure such Material Document Defect or
Material
Breach, as the case may be, in all material respects; provided,
however, that if
such Material Document Defect or Material Breach, as the case may
be, cannot be
corrected or cured in all material respects within such 90-day
period, and such
Material Document Defect or Material Breach would not cause the
Mortgage Loan to
be other than a "qualified mortgage" (as defined in the Code) but
the related
Seller is diligently attempting to effect such correction or cure,
as certified
by such Seller in an Officer's Certificate delivered to the
Trustee, then the
cure period will be extended for an additional 90 days unless,
solely in the
case of a Material Document Defect, (x) the Mortgage Loan is at the
end of the
initial 90 day period a Specially Serviced Mortgage Loan and a
Servicing
Transfer Event has occurred as a result of a monetary default or as
described in
clause (ii) or clause (v) of the definition of "Servicing Transfer
Event" and
(y) the Material Document Defect was identified in a certification
delivered to
the Seller by the Trustee pursuant to Section 2.2 not less than 90
days prior to
the delivery of the notice of such Material Document Defect. The
parties
acknowledge that neither delivery of a certification or schedule of
exceptions
to a Seller pursuant to Section 2.2 or otherwise nor possession of
such
certification or schedule by the Seller shall, in and of itself,
constitute
delivery of notice of any Material Document Defect or knowledge or
awareness by
the Seller of any Material Document Defect listed therein.
Notwithstanding
anything herein to the contrary, any breach of the representation
and warranty
contained under the heading "Prepayment Premiums" in Exhibit 2 to
each Mortgage
Loan Purchase Agreement with respect to any Mortgage Loan shall
constitute a
Material Breach only if such prepayment premium or yield
maintenance charge is
not deemed "customary" for commercial mortgage loans at the time of
origination,
as evidenced by (i) an opinion of tax counsel to such effect or
(ii) a
determination by the Internal Revenue Service that such provision
is not
customary. In addition, if such Mortgage Loan is modified so that
it becomes a
Qualifying Substitute Mortgage Loan, such breach shall be deemed
cured and the
related Seller will not be obligated to repurchase such Mortgage
Loan or
otherwise remedy such breach. The related Seller is required to pay
for any
expenses incurred by the applicable Master Servicer or the
applicable Special
Servicer in connection with such modification. Notwithstanding the
foregoing,
with respect to the Non-Trust-Serviced Pari Passu Loan, the General
Master
Servicer and the General Special Servicer shall not enforce the
related Mortgage
Loan Purchase Agreement if the 2007-HQ11 Master Servicer or
2007-HQ11 Special
Servicer shall be entitled to, and shall be, enforcing such
Mortgage Loan
Purchase Agreement pursuant to the 2007-HQ11 Pooling and Servicing
Agreement on
behalf of the Non-Trust-Serviced Pari Passu Loan and in such event
any related
Liquidation Fee shall be payable to the 2007-HQ11 Special Servicer
to the extent
required by the 2007-HQ11 Pooling and Servicing Agreement and no
Liquidation Fee
shall be payable hereunder. However, with respect to any Material
Breach or
Material Document Defect that relates solely to the
Non-Trust-Serviced Pari
Passu Loan and not to the remainder of its Loan Group, and which is
not being
enforced by the 2007-HQ11 Master Servicer or 2007-HQ11 Special
Servicer, the
General Master Servicer shall, and the General Special Servicer
may, proceed as
otherwise described above or below with respect to the enforcement
of the
related Mortgage Loan Purchase Agreement, and the General Special
Servicer may
receive a Liquidation Fee on the related Liquidation Proceeds to
the extent
otherwise permitted hereby. Any expenses incurred by the applicable
Master
Servicer or Special Servicer in connection with this Section 2.3(a)
shall be
considered a Servicing Advance.
If any such Material Document Defect or Material Breach cannot
be
corrected or cured in all material respects within the above cure
periods, the
related Seller that is the subject of such Material Breach shall be
obligated,
not later than the last day of such permitted cure period, to (i)
repurchase the
affected Mortgage Loan or REO Mortgage Loan from the Trust at the
applicable
Purchase Price in accordance with the related Mortgage Loan
Purchase Agreement,
or (ii) if within the two-year period commencing on the Closing
Date, at the
related Seller's option, replace, without recourse, such Mortgage
Loan or REO
Mortgage Loan with a Qualifying Substitute Mortgage Loan. If such
Material
Document Defect or Material Breach would cause the Mortgage Loan to
be other
than a "qualified mortgage" (as defined in the Code), then
notwithstanding the
previous sentence, the repurchase or substitution must occur within
90 days from
the earlier of the date the related Seller discovered or was
notified of the
breach or defect.
As to any Qualifying Substitute Mortgage Loan or Loans, the
applicable
Master Servicer shall not execute any instrument effecting the
substitution
unless the related Seller has delivered to the Trustee for such
Qualifying
Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage,
the related
Assignment of Mortgage, and such other documents and agreements as
are required
by Section 2.1, with the Mortgage Note endorsed as required by
Section 2.1 and
such Master Servicer shall be entitled to rely on statements and
certifications
from the Trustee for this purpose. If the Mortgage related to the
Qualifying
Substitute Mortgage Loan has been recorded in the name of MERS or
its designee,
the applicable Master Servicer shall use commercially reasonable
efforts (and
the Trustee shall cooperate with such efforts of such Master
Servicer) to
reflect the release of such Mortgage on the records of MERS. No
substitution may
be made in any calendar month after the Determination Date for such
month.
Monthly payments due with respect to Qualifying Substitute Mortgage
Loans in the
month of substitution shall not be part of the Trust and will be
retained by the
applicable Master Servicer and remitted by such Master Servicer to
the related
Seller on the next succeeding Distribution Date. For the month of
substitution,
distributions to Certificateholders will include the Scheduled
Payment due on
the related Deleted Mortgage Loan for such month and thereafter the
related
Seller shall be entitled to retain all amounts received in respect
of such
Deleted Mortgage Loan.
The applicable Master Servicer shall amend or cause to be amended
the
Mortgage Loan Schedule to reflect the removal of such Deleted
Mortgage Loan and
the substitution of the Qualifying Substitute Mortgage Loan or
Loans and upon
such amendment such Master Servicer shall deliver or cause to be
delivered such
amended Mortgage Loan Schedule to the Trustee and the applicable
Special
Servicer. Upon such substitution, the Qualifying Substitute
Mortgage Loan or
Loans shall be subject to the terms of this Agreement in all
respects. Upon
receipt of the Trustee Mortgage File pertaining to any Qualifying
Substitute
Mortgage Loans, the Trustee shall release the Trustee Mortgage File
relating to
such Deleted Mortgage Loan to the related Seller, and the Trustee
(and the
Depositor, if necessary) shall execute and deliver such instruments
of transfer
or assignment in the form presented to it, in each case without
recourse,
representation or warranty, as shall be necessary to vest title (to
the extent
that such title was transferred to the Trustee or the Depositor) in
the related
Seller or its designee to any Deleted Mortgage Loan (including any
property
acquired in respect thereof or any insurance policy proceeds
relating thereto)
substituted for pursuant to this Section 2.3.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection
with a Material Document Defect or Material Breach as contemplated
above, (ii)
such Mortgage Loan is cross-collateralized and cross-defaulted with
one or more
other Mortgage Loans in the Trust and (iii) the applicable document
defect or
breach does not constitute a Material Document Defect or Material
Breach, as the
case may be, as to such other Mortgage Loans (without regard to
this paragraph),
then the applicable document defect or breach (as the case may be)
shall be
deemed to constitute a Material Document Defect or Material Breach
(as the case
may be) as to each such other Mortgage Loan for purposes of the
above
provisions, and the related Seller shall be obligated to repurchase
or replace
each such other Mortgage Loan in accordance with the provisions
above unless, in
the case of such breach or document defect, both of the following
conditions
would be satisfied if the related Seller were to repurchase or
replace only
those Mortgage Loans as to which a Material Breach or Material
Document Defect
had occurred without regard to this paragraph (the "Affected
Loan(s)"): (1) the
debt service coverage ratio for all such other Mortgage Loans
(excluding the
Affected Loan(s)) for the four calendar quarters immediately
preceding the
repurchase or replacement (determined as provided in the definition
of Debt
Service Coverage Ratio, except that net cash flow for such four
calendar
quarters, rather than year-end, shall be used) is equal to the
greater of (x)
the debt service coverage ratio for all such Mortgage Loans
(including the
Affected Loan(s)) set forth under the heading "NCF DSCR" in
Appendix II to the
Final Prospectus Supplement and (y) 1.25x, and (2) the
Loan-to-Value Ratio for
all such other Mortgage Loans (excluding the Affected Loan(s)) is
not greater
than the lesser of (x) the current Loan-to-Value Ratio for all such
Mortgage
Loans (including the Affected Loan(s)) set forth under the heading
"Cut-Off Date
LTV" in Appendix II to the Final Prospectus Supplement and (y) 75%.
The
determination of the applicable Master Servicer as to whether the
conditions set
forth above have been satisfied shall be conclusive and binding in
the absence
of manifest error. The applicable Master Servicer will be entitled
to cause to
be delivered, or direct the related Seller to (in which case the
related Seller
shall) cause to be delivered to such Master Servicer: (i) an
Appraisal of any or
all of the related Mortgaged Properties for purposes of determining
whether the
condition set forth in clause (2) above has been satisfied, in each
case at the
expense of the related Seller if the scope and cost of the
Appraisal is approved
by the related Seller (such approval not to be unreasonably
withheld) and (ii)
an Opinion of Counsel that not requiring the repurchase of each
such other
Mortgage Loan will not result in an Adverse REMIC Event.
With respect to any Mortgage Loan that is cross-defaulted and
cross-collateralized with any other Mortgage Loan conveyed
hereunder, to the
extent that the applicable Seller is required to repurchase or
substitute for
such Mortgage Loan (each, a "Repurchased Loan") in the manner
prescribed above
while the Trustee continues to hold any other Mortgage Loan that
is
cross-collateralized and cross-defaulted (each, a
"Cross-Collateralized Loan")
with such Repurchased Loan, the related Seller and the Depositor
have agreed in
the Mortgage Loan Purchase Agreement to modify, prior to such
repurchase or
substitution, the related Mortgage Loan documents in a manner such
that such
affected Repurchased Loan, on the one hand, and any related
Crossed-Collateralized Loans held by the Trustee, on the other,
would no longer
be cross-defaulted or cross-collateralized with one another;
provided that the
applicable Seller shall have furnished the Trustee, at the expense
of the
applicable Seller, with a Nondisqualification Opinion that such
modification
shall not cause an Adverse REMIC Event; provided, further, that if
such
Nondisqualification Opinion cannot be furnished, the applicable
Seller and the
Depositor have agreed in the applicable Mortgage Loan Purchase
Agreement that
such repurchase or substitution of only the Repurchased Loan,
notwithstanding
anything to the contrary herein, shall not be permitted and the
applicable
Seller shall repurchase or substitute for the Repurchased Loan and
all related
Crossed-Collateralized Loans. Any reserve or other cash collateral
or letters of
credit securing the Repurchased Loan and the Cross-Collateralized
Loans shall be
allocated between such Mortgage Loans in accordance with the
Mortgage Loan
documents. All other terms of the Mortgage Loans shall remain in
full force and
effect, without any modification thereof. The Mortgagors set forth
on Schedule
IX hereto are intended third-party beneficiaries of the provisions
set forth in
this paragraph and the preceding paragraph. The provisions of this
paragraph and
the preceding paragraph may not be modified with respect to any
Mortgage Loan
without the related Mortgagor's consent.
Upon occurrence (and after any applicable cure or grace period),
any of
the following document defects shall be conclusively presumed
materially and
adversely to affect the interests of Certificateholders in a
Mortgage Loan and
be a Material Document Defect: (a) the absence from the Mortgage
File of the
original signed Mortgage Note, unless the Mortgage File contains a
signed lost
note affidavit and indemnity and a copy of the Mortgage Note; (b)
the absence
from the Mortgage File of the original signed Mortgage, unless
there is included
in the Mortgage File (i) a copy of the Mortgage certified by the
local authority
with which the Mortgage was recorded or (ii) a true and correct
copy of the
Mortgage together with an Officer's Certificate; or (c) the absence
from the
Mortgage File of the item called for by paragraph (viii) of the
definition of
Mortgage File (or, with respect to the Non-Trust-Serviced Pari
Passu Loan, a
copy thereof). If any of the foregoing Material Document Defects is
discovered
by the Custodian (or the Trustee if there is no Custodian) or any
other party
hereto, the Trustee (or as set forth in Section 2.3(a), the
applicable Master
Servicer) will take the steps described elsewhere in this section,
including the
giving of notices to the Rating Agencies and the parties hereto and
making
demand upon the related Seller for the cure of the document defect
or repurchase
or replacement of the related Mortgage Loan.
(b) If the related Seller disputes that a Material Document Defect
or
Material Breach exists with respect to a Mortgage Loan or otherwise
refuses (i)
to effect a correction or cure of such Material Document Defect or
Material
Breach, (ii) to repurchase the affected Mortgage Loan from the
Trust or (iii) to
replace such Mortgage Loan with a Qualifying Substitute Mortgage
Loan, each in
accordance with the related Mortgage Loan Purchase Agreement, then
provided that
(x) the period of time provided for the related Seller to correct,
repurchase or
cure has expired and (y) the Mortgage Loan is then in default and
is then a
Specially Serviced Mortgage Loan, the applicable Special Servicer
may, subject
to the Servicing Standard, modify, work-out or foreclose, sell or
otherwise
liquidate (or permit the liquidation of) the Mortgage Loan pursuant
to Section
9.12, Section 9.15, Section 9.36 and Section 14.1, as applicable,
of this
Agreement, while pursuing the repurchase claim. Each Seller
acknowledges and
agrees that any modification of the Mortgage Loan pursuant to such
a work-out
shall not constitute a defense to any repurchase claim nor shall
such
modification or work-out change the Purchase Price due from the
related Seller
for any repurchase claim. Any sale of the Mortgage Loan, or
foreclosure upon
such Mortgage Loan and sale of the REO Property, to a Person other
than the
related Seller shall be without (i) recourse of any kind (either
expressed or
implied) by such Person against the related Seller and (ii)
representation or
warranty of any kind (either expressed or implied) by the related
Seller to or
for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is
not
discovered until after foreclosure (but in all instances prior to
the sale of
the related REO Property or Mortgage Loan) shall not prejudice any
claim against
the related Seller for repurchase of the REO Mortgage Loan or REO
Property. In
such an event, each Master Servicer or Special Servicer, as
applicable, shall
notify the related Seller of the discovery of the Material Document
Defect or
Material Breach and the related Seller shall be required to follow
the
procedures set forth in the related Mortgage Loan Purchase
Agreement to correct
or cure such Material Document Defect or Material Breach or
purchase the REO
Property at the Purchase Price. If the related Seller fails to
correct or cure
the Material Document Defect or Material Breach or purchase the REO
Property,
then the provisions above regarding notice of offers related to
such REO
Property and the related Seller's right to purchase such REO
Property shall
apply. If a court of competent jurisdiction issues a final order
that the
related Seller is or was obligated to repurchase the related
Mortgage Loan or
REO Mortgage Loan or the related Seller otherwise accepts
liability, then, after
the expiration of any applicable appeal period, but in no event
later than the
termination of the Trust pursuant to Section 9.30 hereof, the
related Seller
will be obligated to pay to the Trust the difference between any
Liquidation
Proceeds received upon such liquidation (including those arising
from any sale
to the related Seller) and the Purchase Price; provided that the
prevailing
party in such action shall be entitled to recover all costs, fees
and expenses
(including reasonable attorneys fees) related thereto; provided,
further, that
if the Seller is the prevailing party in such action, such costs,
fees and
expenses (including reasonable attorneys fees) shall be an
Additional Trust
Expense.
In connection with any liquidation or sale of a Mortgage Loan or
REO
Property as described above, the Special Servicer will not receive
a Liquidation
Fee in connection with (x) such liquidation or sale or any portion
of the
Work-Out Fee that accrues after the related Seller receives notice
of a breach
or defect until a final determination has been made, as set forth
in the prior
paragraph, as to whether the related Seller is or was obligated to
repurchase
such related Mortgage Loan or REO Property or (y) a repurchase by
the related
Seller of the Non-Trust-Serviced Pari Passu Loan, where the
repurchase
obligation has been enforced by the 2007-HQ11 Master Servicer or
2007-HQ11
Special Servicer. Subject to the last two sentences of the first
paragraph of
Section 2.3(a), upon such determination, the Special Servicer will
be entitled:
(i) with respect to a determination that the related Seller is or
was obligated
to repurchase a Mortgage Loan, to collect a Liquidation Fee, if due
in
accordance with the definition thereof, based upon the full
Purchase Price of
the related Mortgage Loan or REO Property, with such Liquidation
Fee payable by
the related Seller or (ii) with respect to a determination that the
related
Seller is not or was not obligated to repurchase a Mortgage Loan
(or the Trust
decides that it will no longer pursue a claim against the Seller
for
repurchase), (A) to collect a Liquidation Fee based upon the
Liquidation
Proceeds as received upon the actual sale or liquidation of such
Mortgage Loan
or REO Property, and (B) collect any accrued and unpaid Work-Out
Fee, based on
amounts that were collected for as long as the related Mortgage
Loan was a
Rehabilitated Mortgage Loan, in each case with such amounts to be
paid from
amounts in the Certificate Account.
In any month in which the related Seller substitutes one or
more
Qualifying Substitute Mortgage Loans for one or more Deleted
Mortgage Loans, the
applicable Master Servicer will determine the amount (if any) by
which the
aggregate Principal Balance of all such Qualifying Substitute
Mortgage Loans as
of the date of substitution is less than the aggregate Principal
Balance of all
such Deleted Mortgage Loans (in each case after application of
scheduled
principal portion of the monthly payments received in the month
of
substitution). The Depositor shall cause the related Seller to
deposit the
amount of such shortage into the Certificate Account in the month
of
substitution, without any reimbursement thereof. In addition, the
Depositor
shall cause the related Seller to deposit into the Certificate
Account, together
with such shortage, if any, an amount equal to interest on the
Deleted Mortgage
Loans at a rate equal to the sum of the applicable Mortgage Rate
from the Due
Date as to which interest was last paid up to the Due Date next
succeeding such
substitution together with the amount of unreimbursed Servicing
Advances,
amounts required to be paid to the applicable Special Servicer but
remaining
unpaid or unreimbursed, and interest on unreimbursed Advances with
respect to
such Deleted Mortgage Loans at the Advance Rate. The Depositor
shall cause the
related Seller, in the case of the Mortgage Loans, to give notice
in writing
(accompanied by an Officer's Certificate as to the calculation of
such shortage)
to the Trustee and the applicable Master Servicer of such event
which notice
shall be accompanied by an Officer's Certificate as to the
calculation of such
shortfall.
If the affected Mortgage Loan is to be repurchased, the
applicable
Master Servicer shall designate the Certificate Account as the
account to which
funds in the amount of the Purchase Price are to be wired. Any such
purchase of
a Mortgage Loan shall be on a whole loan, servicing released
basis.
(c) In connection with any repurchase of or substitution for a
Mortgage
Loan contemplated by this Section 2.3, the Trustee, the applicable
Master
Servicer and the applicable Special Servicer shall each tender to
the related
Seller, upon delivery to each of them of a receipt executed by such
Seller, all
portions of the Mortgage File and other documents pertaining to
such Mortgage
Loan possessed by it (including, without limitation, all documents
delivered to
the Trustee and such Master Servicer pursuant to the related
Mortgage Loan
Purchase Agreement), and each document that constitutes a part of
the Mortgage
File shall be endorsed or assigned to the extent necessary or
appropriate to the
related Seller or its designee in the same manner, and pursuant to
appropriate
forms of assignment, substantially similar to the manner and forms
pursuant to
which documents were previously assigned to the Trustee, but in any
event,
without recourse, representation or warranty; provided that such
tender by the
Trustee shall be conditioned upon its receipt from the applicable
Master
Servicer of a Request for Release. The applicable Master Servicer
shall, and is
hereby authorized and empowered by the Trustee to, prepare, execute
and deliver
in its own name, on behalf of the Certificateholders and the
Trustee or any of
them, the endorsements and assignments contemplated by this Section
2.3, and the
Trustee shall execute and deliver any powers of attorney necessary
to permit the
applicable Master Servicer to do so. The applicable Master Servicer
shall, and
is also hereby authorized and empowered by the Trustee to, reconvey
to the
related Seller any deposits then held in the applicable Escrow
Account relating
to the Mortgage Loan being repurchased or substituted for. Each
Master Servicer
shall indemnify the Trustee for all costs, liabilities and expenses
(including
attorneys' fees) incurred by the Trustee in connection with any
negligent or
intentional misuse of any such powers of attorney by such Master
Servicer.
(d) The Mortgage Loan Purchase Agreements provide the sole
remedies
available to the Certificateholders, or the Trustee on behalf of
the
Certificateholders, respecting any Material Document Defect or
Material Breach.
The parties hereunder understand that (i) MSMC, as Seller under
Mortgage Loan
Purchase Agreement I, will be providing the remedies with respect
to the MSMC
Loans, (ii) Natixis, as Seller under Mortgage Loan Purchase
Agreement II, will
be providing remedies with respect to the Natixis Loans, (iii)
SunTrust, as
Seller under Mortgage Loan Purchase Agreement III, will be
providing remedies
with respect to the SunTrust Loans and (iv) NCB, FSB, as Seller
under Mortgage
Loan Purchase Agreement IV, will be providing the remedies with
respect to the
NCB, FSB Loans. No amendment to this Agreement may change in any
manner the
obligations of a Seller under the related Mortgage Loan Purchase
Agreement
without the consent of such Seller in writing.
(e) The Trustee shall enforce the provisions of this Section
2.3.
Alternatively, the Trustee may, in its sole discretion, appoint a
designee to
enforce such provisions (which, with the applicable Master
Servicer's consent,
may be such Master Servicer or which, with the applicable Special
Servicer's
consent, may be such Special Servicer).
