EXHIBIT 99.1
PRIMARY SERVICING AGREEMENT
BANC OF AMERICA COMMERCIAL MORTGAGE TRUST 2007-1
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-1
Dated as of February 1, ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, NATIONAL ASSOCIATION
"Master Servicer"
and
▇▇▇▇▇ FARGO BANK, N.A.
"Sub-Servicer"
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS...............................................................
Section 1.01. Defined Terms...........................................
ARTICLE II. RETENTION AND AUTHORITY OF SUB-SERVICER...................................
Section 2.01. Servicing Standard; Commencement of Servicing
Responsibilities; Authority of Sub-Servicer.............
Section 2.02. Sub-Servicing...........................................
Section 2.03. Notice to Master Servicer of Certain Servicing
Actions and Payments; Compensating Interest
Payment.................................................
ARTICLE III. SERVICES TO BE PERFORMED..................................................
Section 3.01. Services as Sub-Servicer................................
Section 3.02. Portfolio Manager.......................................
Section 3.03. Maintenance of Errors and Omissions and Fidelity
Coverage................................................
Section 3.04. Delivery and Possession of Servicing Files..............
Section 3.05. Settlements Involving Sub-Servicer......................
ARTICLE IV. SUB-SERVICER'S COMPENSATION AND EXPENSES..................................
Section 4.01. Sub-Servicing Compensation..............................
ARTICLE V. THE MASTER SERVICER AND THE SUB-SERVICER..................................
Section 5.01. Sub-Servicer Not to Assign; Merger or
Consolidation of the Sub-Servicer.......................
Section 5.02. Liability and Indemnification of the Sub-Servicer
and the Master Servicer.................................
Section 5.03. Representations and Warranties..........................
ARTICLE VI. EVENTS OF DEFAULT; TERMINATION............................................
Section 6.01. Events of Default.......................................
Section 6.02. Specially Serviced Mortgage Loans.......................
Section 6.03. Termination of Agreement................................
ARTICLE VII. MISCELLANEOUS PROVISIONS..................................................
Section 7.01. Amendment...............................................
Section 7.02. Governing Law...........................................
Section 7.03. Notices.................................................
Section 7.04. Consistency with PSA; Severability of Provisions........
Section 7.05. Binding Effect; No Partnership; Counterparts............
Section 7.06. Construction............................................
LIST OF EXHIBITS
Exhibit "A" Mortgage Loan Schedule
Exhibit "B" Form of Collection Report
Exhibit "C" Escrow Report
Exhibit "D" Property Inspection Report
Exhibit "E" Form of Additional Reports
Exhibit "F" Form of Account Certification
Exhibit "G" Form of Certification
Exhibit "H" Form of Semi-Annual Servicing Certification
Exhibit "I" Form of Day One Report
THIS PRIMARY SERVICING AGREEMENT (this "Agreement") is made effective as
of February 1, 2007 by and between BANK OF AMERICA, NATIONAL ASSOCIATION, a
national banking association (together with its successors and assigns, the
"Master Servicer"), and ▇▇▇▇▇ FARGO BANK, N.A., a national banking association
(together with its successors and assigns permitted under this Agreement, the
"Sub-Servicer").
RECITALS
The following Recitals are a material part of this Agreement:
A. Pursuant to the Pooling and Servicing Agreement (the "PSA") dated as of
February 1, 2007, among BANC OF AMERICA COMMERCIAL MORTGAGE INC., as Depositor,
BANK OF AMERICA, NATIONAL ASSOCIATION, as Master Servicer, LNR PARTNERS, INC.,
as Special Servicer and LASALLE BANK NATIONAL ASSOCIATION, as Trustee and REMIC
Administrator, relating to the BANC OF AMERICA COMMERCIAL MORTGAGE TRUST 2007-1,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-1 (a copy of which
has been delivered to the Sub-Servicer), the Master Servicer services and
administers the Mortgage Loans (as defined below) on behalf of the Trust (as
defined in the PSA).
B. The Master Servicer and the Sub-Servicer desire to enter into an
agreement whereby the Sub-Servicer shall perform certain of the Master
Servicer's servicing responsibilities under the PSA with respect to the Mortgage
Loans as more specifically set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises contained in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Master Servicer and the
Sub-Servicer hereby agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01. Defined Terms.
All capitalized terms not otherwise defined in this Agreement have the
meanings set forth in the PSA, and the following capitalized terms have the
respective meanings set forth below:
"Accepted Sub-Servicing Practices": As defined in Section 2.01(b).
"Accounts": The Sub-Servicer Certificate Account, Lock Box Accounts,
Servicing Accounts, Reserve Accounts and Escrow Accounts maintained by the
Sub-Servicer under this Agreement, each of which (to the extent permitted by the
related Mortgage Loan Documents) shall be held in the name of the Sub-Servicer,
"in trust for Bank of America, National Association, as Master Servicer, in
trust for LaSalle Bank National Association, as Trustee, in trust for Holders of
Banc of America Commercial Mortgage Trust 2007-1, Commercial Mortgage
Pass-Through Certificates, Series 2007-1."
"Additional Sub-Servicing Compensation": As defined in Section 4.01(b).
"Agreement": This Sub-Servicing Agreement, as amended, modified,
supplemented or restated by the parties from time to time.
"Annual Accountants' Report": As defined in Section 3.06.
"Collection Report": A written report regarding any remittance made
pursuant to the terms and provisions of this Agreement, which report shall be
delivered electronically pursuant to this Agreement substantially in the form
attached hereto as Exhibit B (or in such other form as may be reasonably
requested by the Master Servicer from time to time).
"Day One Report": With respect to each Mortgage Loan, a statement in the
form of Exhibit I setting forth the scheduled payments of interest and principal
and the amount of any unanticipated prepayments of which the Sub-Servicer has
received actual notice (including without limitation those for which a notice
has been given to the effect that the prepayment will be made at any time during
the applicable Collection Period), indicating the Mortgage Loan and on account
of what type of payment such amount is to be applied on behalf of the related
Mortgagor.
"Escrow Report": A report regarding escrow accounts and related matters,
which report shall be delivered electronically pursuant to this Agreement
substantially in the form attached hereto as Exhibit C (or in such other form as
may be reasonably requested by the Master Servicer from time to time).
"Event of Default": As defined in Section 6.01(a).
"Master Servicer": As defined in the first paragraph of this Agreement.
"Mortgage Loan": Each of the Whole Loans that is the subject of this
Agreement and is identified on the Mortgage Loan Schedule.
"Mortgage Loan Schedule": The schedule of mortgage loans attached hereto
as Exhibit A, which schedule sets forth certain information with respect to the
mortgage loans to be sub-serviced hereunder, including a list of the related
Companion Loans and the related Sub-Servicing Fee Rate.
"Property Inspection Report": A written report of each inspection of a
Mortgaged Property performed by the Sub-Servicer, which shall be delivered
electronically pursuant to this Agreement substantially in the form attached
hereto as Exhibit D (or in such other form as may be reasonably requested by the
Master Servicer from time to time) and, in any event, shall set forth in detail
the condition of the subject Mortgaged Property and specify the occurrence or
existence of any sale, transfer or abandonment of, any change in the condition,
occupancy or value of, or any waste committed on, the subject Mortgaged Property
of which the Sub-Servicer is aware.
"PSA": As defined in the Recitals to this Agreement.
"Servicing Officer": Any officer or employee of the Sub-Servicer or the
Master Servicer, as the case may be, involved in or responsible for the
administration, supervision or management of this Agreement and whose name and
specimen signature appear on a list prepared by each party and delivered to the
other party, as such list may be amended from time to time by either party.
"Sub-Servicer": As defined in the first paragraph of this Agreement.
"Sub-Servicer A/B Loan Custodial Account": As defined in Section
3.01(a)(iv)(B).
"Sub-Servicer Certificate Account": As defined in Section 3.01(a)(iv).
"Sub-Servicer Remittance Date": The second Business Day preceding the
Distribution Date.
"Sub-Servicer Reporting Date": The third Business Day preceding the
Distribution Date.
"Sub-Servicing Fee": With respect to each Mortgage Loan, the fee
designated as such and payable to the Sub-Servicer pursuant to Section 4.01.
"Sub-Servicing Fee Rate": A rate per annum with respect to each Mortgage
Loan as set forth on the Mortgage Loan Schedule.
"Sub-Servicing File": With respect to each Mortgage Loan, all documents,
information and records relating to such Mortgage Loan (other than documents
that are required to be a part of the Mortgage File) that are necessary or
appropriate to enable the Sub-Servicer to perform its obligations under this
Agreement and are either in the possession of the Sub-Servicer on the date of
this Agreement or constitute additional documents or information related thereto
maintained or created in any form by the Sub-Servicer after the date of this
Agreement.
ARTICLE II.
RETENTION AND AUTHORITY OF SUB-SERVICER
Section 2.01. Servicing Standard; Commencement of Servicing Responsibilities;
Authority of Sub-Servicer.
(a) The Master Servicer hereby engages the Sub-Servicer to perform (either
directly or through sub-servicers (as permitted under this Agreement)), and the
Sub-Servicer hereby agrees to perform, with respect to the Mortgage Loans, the
servicing duties and obligations of the Master Servicer under the PSA that are
delegated to or assumed by the Sub-Servicer under this Agreement throughout the
term of, and upon and subject to the terms, covenants and provisions of, this
Agreement. The Sub-Servicer shall service and administer the Mortgage Loans
pursuant to this Agreement for the benefit of the Master Servicer, any related
Companion Loan Holders and the Certificateholders (as a collective whole) in
accordance with Accepted Sub-Servicing Practices (defined below), applicable
law, the specific terms of the Loan Documents, the PSA, this Agreement and the
terms of the related Intercreditor Agreement (if any), taking into account the
subordinated nature of a Companion Loan (if any), whether or not a requirement
to act in accordance with such standards is specifically recited in any
particular provision of this Agreement.
(b) The "Accepted Sub-Servicing Practices" shall mean with respect to the
Sub-Servicer subject to applicable law and the express terms of the relevant
Mortgage Loans and in the case of a Whole Loan, the related Intercreditor
Agreement, to service and administer the Mortgage Loans for which such Person is
responsible hereunder: (a) with the same care, skill, prudence and diligence as
is normal and usual in its general mortgage servicing and REO property
management activities on behalf of third parties or on behalf of itself,
whichever is higher, with respect to mortgage loans and REO properties that are
comparable to those for which it is responsible hereunder; (b) with a view to
the timely collection of all scheduled payments of principal and interest under
the Mortgage Loans, the full collection of all Prepayment Premiums that may
become payable under the Mortgage Loans; and (c) without regard to: (i) any
known relationship that the Sub-Servicer (or any Affiliate thereof) or may have
with the related Mortgagor or with any other party to this Agreement; (ii) the
ownership of any Certificate or Companion Loan or any interest in any mezzanine
loan by the Sub-Servicer (or any Affiliate thereof); (iii) the right of the
Sub-Servicer (or any Affiliate thereof), to receive reimbursement of costs, or
the sufficiency of any compensation payable to it, hereunder or with respect to
any particular transaction; or (iv) any ownership, servicing and/or management
by the Sub-Servicer (or any Affiliate thereof), of any other mortgage loans or
real property.
(c) Except as otherwise provided in this Agreement and subject to the
terms of this Agreement and the Master Servicer's limitations of authority as
Servicer under the PSA, in performing its obligations under this Agreement, the
Sub-Servicer shall have full power and authority to take any and all actions in
connection with such obligations that it deems necessary or appropriate;
provided, however, that the Sub-Servicer shall not, without obtaining the prior
written consent of the Master Servicer (which consent (i) may be in the form of
an asset business plan or similar document approved in writing by the Master
Servicer and (ii) shall be subject to the prior approval of the Special
Servicer, the applicable Controlling Holder, the Directing Certificateholder,
the Rating Agencies and any other Person if so required under the PSA, which
approvals shall be requested by the Master Servicer), take any actions with
respect to any Mortgage Loan for which the Master Servicer is required under the
PSA to first obtain the consent or approval of the Special Servicer, any
Controlling Holder, the Directing Certificateholder, any Rating Agency or any
other Person, including pursuant to PSA Sections 3.08, 3.20, 3.21, 3.23 3.28,
3.29 and 3.30. In connection with any action that the Sub-Servicer proposes to
take with respect to any of the foregoing PSA provisions referenced in the
immediately preceding sentence, the Sub-Servicer shall reasonably cooperate with
the Master Servicer to enable the Master Servicer to either grant or withhold
its consent its consent with respect to such action. Such reasonable cooperation
shall include (but shall not be limited to) the submission by the Sub-Servicer
to the Master Servicer of case write-ups and other applicable written analysis
which the Sub-Servicer shall prepare with respect to any such action proposed to
be taken by the Sub-Servicer. The Sub-Servicer shall process any actions that
the Master Servicer shall be permitted to process without any other Person's
approval under Section 3.20(g) of the PSA without approval of the Maser
Servicer.
Section 2.02. Sub-Servicing.
The Sub-Servicer may, subject to the consent of the Master Servicer which
shall not be unreasonably withheld (provided, however, that the Sub-Servicer
need not obtain the approval of the Master Servicer with respect to Persons
engaged to perform specific and limited activities (such as the engagement of
tax monitoring services, property inspections, etc.) with respect to the
Mortgage Loans; provided that such Persons would not constitute a "Servicer" or
a party participating in the servicing function for purposes of Regulation AB,
in each case such determination to be made without regard to any applicable size
threshold (i.e., whether such Person services 5% or under)), enter into any
Sub-Servicing agreement with another Sub-Servicer that would permit such
Sub-Servicer to perform any or all of the Sub-Servicer's servicing
responsibilities under this Agreement as long as each such Sub-Servicing
agreement complies with the requirements for Sub-Servicing agreements in PSA
Section 3.22. Notwithstanding any Sub-Servicing agreement, the Sub-Servicer
shall remain directly obligated and primarily liable to the Master Servicer for
the servicing and administration of the Mortgage Loans in accordance with the
provisions of this Agreement without diminution of such obligation or liability
by virtue of such Sub-Servicing agreement to the same extent and under the same
terms and conditions as if the Sub-Servicer were servicing the Mortgage Loans
alone.
Section 2.03. Notice to Master Servicer of Certain Servicing Actions and
Payments; Compensating Interest Payment.
(a) Regardless of whether the Sub-Servicer is required to obtain prior
consent or approval from the Master Servicer pursuant to Section 2.01(c) above,
the Sub-Servicer shall provide written notice to the Master Servicer before or
simultaneously with taking any of the following actions with respect to any
Mortgage Loan:
(i) any determination of whether or not to release any Insurance
Proceeds and Condemnation Proceeds to the Mortgagor under any Mortgage
Loan;
(ii) any termination or replacement, or consent to the termination
or replacement, of a property manager with respect to any Mortgaged
Property, or any termination or change, or consent to the termination or
change, of the franchise affiliation with respect to any hotel property
that in whole or in part constitutes any Mortgaged Property;
(iii) granting any consent to any request by a Mortgagor for
approval to incur additional indebtedness or to amend or modify its
organizational documents (other than, in each case, where the action is
not conditioned on obtaining the consent of the lender);
(iv) any determination with respect to a Mortgage Loan as to whether
a default has occurred under the related Loan Documents by reason of any
failure on the part of the related Mortgagor to maintain (A) any insurance
required under the related Loan Documents, (B) an all-risk casualty
insurance policy or an extended coverage insurance policy (with special
form coverage) that does not contain any exclusion for (or a separate
insurance policy that expressly provides coverage for) property damage
resulting from a terrorist or similar act, or (C) insurance coverage for
property damage resulting from a terrorist or similar act upon terms no
less favorable than those in place as of the Closing Date; or
(v) any grant or withholding of consent to, or the performance of,
any prepayment of a Mortgage Loan.
(b) Regardless of whether the consent or approval of the Master Servicer
is required pursuant to this Agreement, the Sub-Servicer shall take any
reasonable action that is directed by the Master Servicer and relates to the
Sub-Servicer's obligations under this Agreement and does not result in a
material increase in the Sub-Servicer's expenses; provided, however, that the
Sub-Servicer shall not be obligated to take any such action to the extent that
the Sub-Servicer determines in its reasonable discretion that such action may
cause a violation of (i) applicable laws, court orders or restrictive covenants
with respect to any Mortgage Loan or Mortgaged Property, (ii) any term or
provision of a Mortgage Loan or (iii) Accepted Sub-Servicing Practices.
(c) In addition, and without in anyway limiting Section 2.03(a), in
connection with any whole or partial Balloon Payments or Principal Prepayments
or any Prepayment Charges, Liquidation Proceeds, Insurance Proceeds or
Condemnation Proceeds, as soon as reasonably possible, and in the case of any
Principal Prepayment in no event later than five (5) Business Days prior to the
date of the applicable Principal Prepayment, the Sub-Servicer shall deliver to
the Master Servicer for its review a statement showing all the amounts,
including the Sub-Servicer's calculation thereof, to be received or paid in
connection therewith.
(d) Further, in connection with any Principal Prepayment of a Mortgage
Loan that gives rise to a Prepayment Interest Shortfall, on the Sub-Servicer
Remittance Date related to the Collection Period for which such Principal
Prepayment is effective, the Sub-Servicer shall remit to the Master Servicer,
pursuant to wiring instructions from the Master Servicer, a compensating
interest payment in an amount equal to the Compensating Interest Payment
required to be paid by the Master Servicer under PSA Section 3.19(e) in
connection with such Principal Prepayment, except that the Sub-Servicer's
compensating interest payment shall be calculated in a manner that (i) does not
include amounts received on mortgage loans other than the Mortgage Loans and
(ii) does not include (unless the Prepayment Interest Shortfall occurs as a
result of the Sub-Servicer's allowing the related Mortgagor to deviate from the
terms of the related loan documents regarding principal prepayments) servicing
fees in excess of the portion of the Sub-Servicer's Sub-Servicing Fees for the
related Collection Period that is, in the case of each and every Mortgage Loan
and REO Loan for which such Master Servicing Fees are being paid in such
Collection Period, calculated at 0.01% per annum. If such Compensating Interest
Payment is not so remitted to the Master Servicer, then the Sub-Servicer shall
also remit to the Master Servicer interest on such Compensating Interest Payment
at the Reimbursement Rate from and including such Sub-Servicer Remittance Date.
Any payment by the Sub-Servicer, or acceptance by the Master Servicer, of such
Sub-Servicer Compensating Interest Payment and any interest thereon shall not be
construed to constitute a waiver of an Event of Default.
ARTICLE III.
SERVICES TO BE PERFORMED
Section 3.01. Services as Sub-Servicer.
With respect to each Mortgage Loan, the Sub-Servicer shall, in accordance
with Accepted Sub-Servicing Practices and subject to the supervision of the
Sub-Servicer by the Master Servicer as set forth in this Agreement, perform the
following servicing activities on behalf of the Master Servicer:
(a) The Sub-Servicer shall perform the duties and obligations with respect
to the Mortgage Loans that the Master Servicer is required to perform under PSA
Sections 3.01 (general servicing), 3.02 (notices to Mortgagors), 3.03 (taxes and
insurance; escrows and reserves), 3.04 and 3.05 (Certificate Account), 3.07
(insurance), 3.08 (due-on-sale/encumbrance enforcement and assumptions), 3.10
(release of files), 3.12(a) (inspections), 3.12(b) (financial statements and
rent rolls), 3.15 (access to information), 3.17(a) (property managers), 3.18
(notices of default, servicing transfers), 3.19 (limitations and authority for
certain Mortgage Loans), and 3.20 (modifications, waivers, amendments and
consents), 3.28 (matters with respect to Whole Loans) and 3.29 (certain powers
of the controlling holders and certain intercreditor matters); provided,
however, that:
(i) the Sub-Servicer shall:
(A) provide the Master Servicer with notice of any
communication by the Mortgagor with respect to any related letter of
credit provided by such Mortgagor; and
(B) provide to the Master Servicer a certification executed by
a duly authorized officer of such Sub-Servicer, certifying to the
Master Servicer as to the original letters of credit held by such
Sub-Servicer, to the extent such letter of credit has been delivered
to the Sub-Servicer, and identifying the letters of credit, the
amounts of the letters of credit and the Mortgage Loans to which
they relate, and provide a copy of such letter of credit to the
Master Servicer pursuant to Section 3.22(h) of the PSA;
(ii) within sixty (60) days after the Closing Date, the Sub-Servicer
shall notify each provider of a letter of credit for any Mortgage Loan,
and provide the Master Servicer with evidence thereof, that the Master
Servicer, on behalf of the Trustee for the benefit of the
Certificateholders, shall be the beneficiary under each such letter of
credit;
(iii) the Sub-Servicer shall have no obligation to make Advances;
provided, that the Sub-Servicer shall provide the Master Servicer not less
than five (5) Business Days' written notice before the date on which the
Master Servicer is required to make any Servicing Advance with respect to
any Mortgage Loan (which notice shall include any and all information in
the Sub-Servicer's possession and requested by the Master Servicer that
will enable the Master Servicer to determine whether such Servicing
Advance would constitute a Nonrecoverable Advance); provided, further,
that if the Sub-Servicer fails to provide the Master Servicer with at
least five (5) Business Days' written notice that the Master Servicer will
be required to make a Servicing Advance, then the Sub-Servicer shall
itself make the required Servicing Advance and deliver to the Master
Servicer a written request for reimbursement therefor together with any
and all information in its possession and requested by the Master Servicer
that will enable the Master Servicer to determine whether such Servicing
Advance constitutes a Nonrecoverable Advance (the Sub-Servicer's right to
such reimbursement being (A) subject to the determination of the Master
Servicer or any other Person under the PSA of whether such Servicing
Advance constitutes a Nonrecoverable Advance and (B) limited to the amount
that the Master Servicer is entitled to be reimbursed under the PSA);
provided, however, for the avoidance of doubt, that if such Servicing
Advance is so determined to constitute a Nonrecoverable Servicing Advance,
the Sub-Servicer shall be entitled to reimbursement therefor out of the
portion of the Certificate Account that is maintained by the Master
Servicer and/or the Sub-Servicer's Certificate Account to the same extent
as Nonrecoverable Advances generally under the PSA;
(iv) the Sub-Servicer shall establish a certificate account (the
"Sub-Servicer Certificate Account") meeting all of the requirements of the
portion of the Certificate Account maintained by the Master Servicer under
the PSA, and, for purposes of this Agreement, references to the
Certificate Account in PSA Section 3.04(a) shall be construed as
references to such Sub-Servicer Certificate Account; provided that any
withdrawals from the Sub-Servicer Certificate Account shall be made only
as specifically authorized under this Agreement. In addition to the
creation of the Sub-Servicer Certificate Account, which shall be an
Eligible Account and titled in the manner prescribed by the definition of
"Accounts" herein, the Sub-Servicer agrees as follows:
(A) On or before the Closing Date, the Sub-Servicer shall
notify the Master Servicer in writing of the name and address of the
depository institution at which the Sub-Servicer Certificate Account
is maintained and the account number of the Sub-Servicer Certificate
Account. The Sub-Servicer shall deliver to the Master Servicer prior
written notice of any change in the location, name or address of the
applicable depository institution or account number of the
Sub-Servicer Certificate Account. The Sub-Servicer shall deposit all
payments and collections received by the Sub-Servicer on or in
respect of the Mortgage Loans into the Sub-Servicer Certificate
Account within one Business Day following receipt.
(B) On or before the Closing Date, the Sub-Servicer shall
establish and maintain one or more sub-accounts of the Sub-Servicer
Certificate Account (such sub-accounts, the "Sub-Servicer A/B Loan
Custodial Account") to be held for the benefit of the Companion Loan
Holders.
(C) The Sub-Servicer shall not withdraw funds from the
Sub-Servicer Certificate Account (including the sub-accounts thereof
that are Sub-Servicer A/B Loan Custodial Account), except as
follows: (1) to make remittances required under subsection (E)
below; (2) if the Master Servicer so directs, to pay to or at the
direction of the Master Servicer any fees, expenses or
reimbursements payable to one or more parties to the PSA, which
fees, expenses or reimbursements have become due and payable under
the terms of the PSA and, pursuant to the collective arrangements
evidenced by the PSA and the Intercreditor Agreement (if any)
related to a particular Mortgage Loan, are payable from payments and
collections received on or in respect of the Mortgage Loans; (3) the
Sub-Servicer shall be entitled to withdraw and pay to itself any
investment or other income earned on amounts on deposit in the
Sub-Servicer Certificate Account to which it is entitled; (4) the
Sub-Servicer shall withdraw and pay to itself each other item of
compensation to which it is entitled (but only from the amounts from
which such compensation is payable as otherwise provided herein) and
(5) the Sub-Servicer shall be entitled to withdraw from the
Sub-Servicer Certificate Account at any time any amounts on deposit
therein that were not required to be deposited into the Sub-Servicer
Certificate Account. The Sub-Servicer shall keep and maintain
separate accounting for the purpose of justifying any withdrawals
made from the Sub-Servicer Certificate Account (and/or the
Sub-Servicer A/B Loan Custodial Account).
(D) The Sub-Servicer shall from time to time allocate payments
received on or in respect of the Mortgage Loans in accordance with
the PSA and the related Intercreditor Agreement.
(E) Not later than 2:00 p.m. (Charlotte, North Carolina time)
on the Sub-Servicer Remittance Date in each month, the Sub-Servicer
shall withdraw from the Sub-Servicer Certificate Account (including
the portion thereof that constitutes the Sub-Servicer A/B Loan
Custodial Account) and remit to the Master Servicer all amounts on
deposit in the Sub-Servicer Certificate Account (including the
portion thereof that constitutes the Sub-Servicer A/B Loan Custodial
Account) as of the close of business on the Sub-Servicer
Determination Date, net of (1) all withdrawals that the Sub-Servicer
is then required or entitled to make from the Sub-Servicer
Certificate Account pursuant to subsection (C) and (2) the amounts
to which any respective related Companion Loan Holders are then
properly entitled under the related Intercreditor Agreement. The
Sub-Servicer shall make remittances to the respective Companion Loan
Holders in accordance with Section 3.01(m) below. In addition, the
Sub-Servicer shall remit to the Master Servicer within one (1)
Business Day after receipt any Late Collections received by the
Sub-Servicer and, subject to Section 4.01(b)(ii), any Default
Charges.
(F) Not later than the time of each remittance of funds to the
Master Servicer or any Companion Loan Holder pursuant to subsection
(E), the Sub-Servicer shall deliver (by electronic means) to the
Master Servicer or such Companion Loan Holder, as the case may be, a
Collection Report substantially in the form attached hereto as
Exhibit B, unless (in the case of a Companion Loan Holder) such
Companion Loan Holder waives the delivery thereof and a copy of such
waiver is delivered to the Master Servicer.
(v) the creation of any Account shall be evidenced by a
certification substantially in the form attached hereto as Exhibit F, and
a copy of any such certification shall be delivered to the Master Servicer
on or prior to the Closing Date and thereafter upon any transfer of such
Account;
(vi) the Sub-Servicer may invest the funds in the Accounts in one or
more Permitted Investments on the same terms as the Master Servicer may
invest funds in the Certificate Account and the Investment Accounts under
PSA Section 3.06(b), and subject to the same restrictions and obligations
regarding maturity dates, gains, losses, possession of Permitted
Investments and Permitted Investments payable on demand;
(vii) Section 3.03 of this Agreement shall control with respect to
the Sub-Servicer's obligation to maintain a fidelity bond and errors and
omissions insurance coverage that satisfies the requirements of PSA
Section 3.07(c);
(viii) Section 4.01 of this Agreement shall control with respect to
which servicing fees and additional servicing compensation the
Sub-Servicer may retain;
(ix) all notices and certifications under such sections that are
required under the PSA to be provided by the Master Servicer to the
Trustee, the Depositor, any Mortgage Loan Seller, any Rating Agency, a
Controlling Holder, the Directing Certificateholder, the Special Servicer
or any other Person shall be provided by the Sub-Servicer to the Master
Servicer only (or as otherwise directed by the Master Servicer) within the
time set forth in this Agreement (or if no such time is set forth, within
one (1) Business Day prior to the date on which the Master Servicer is
required to deliver such item to the applicable Person);
(x) the Sub-Servicer shall not be responsible for any reporting
other than with respect to the Mortgage Loans;
(xi) the Sub-Servicer shall monitor and report to the Master
Servicer on or before 30 Business Days following the end of each calendar
quarter, on a quarterly basis starting for the quarter (or portion thereof
following the Closing Date) the ending in March of 2007, the information
on each Mortgage Loan it services with respect to taxes, insurance
premiums, assessments, ground rents and other similar items as required
by, and in the form of, Exhibit E attached hereto;
(xii) the Sub-Servicer shall monitor and report to the Master
Servicer on or before 30 Business Days following the end of each calendar
quarter, on a quarterly basis starting for the quarter (or portion thereof
following the Closing Date) ending in March of 2007, on the status of
insurance policies and monitor the information relating to the Mortgage
Loans as required by, and in the form of, Exhibit E attached hereto;
(xiii) not later than 2:00 p.m., Charlotte, North Carolina Time on
the Sub-Servicer Reporting Date in July (for the months of January through
June) and January (for the months of July through December) of each year,
the Sub-Servicer shall complete and deliver to the Master Servicer
information regarding reserves, UCC Financing Statements, taxes, insurance
premiums and ground rents, on a semi-annual basis starting for the period
ending in June 2007, in the form of Exhibit H attached hereto;
(xiv) as to Section 3.19(c) of the PSA, the Sub-Servicer shall
deliver Appraisals to the Master Servicer which are obtained with respect
to any Mortgaged Property or REO Property; in addition, each Sub-Servicer
shall deliver copies of the environmental and engineering reports
referenced in this subsection to the Master Servicer;
(xv) as to Section 3.19(f) of the PSA, a Sub-Servicer shall not
consent to any Principal Prepayment, partially or in its entirety, if the
Mortgagor would be prohibited from making such Principal Prepayment,
without the written consent of the Master Servicer;
(xvi) as to Section 3.19(g) of the PSA, it shall be deemed modified
to not allow any action by the Sub-Servicer thereunder without the prior
written consent of the Master Servicer;
(xvii) as to Section 3.19(h) of the PSA, the Sub-Servicer shall send
written notice to each Mortgagor to the effect that, if applicable, the
Master Servicer and/or the Trustee have been appointed as the "designee"
of the lender under any related Lock-Box Account;
(xviii) as to Section 3.19(j) of the PSA, references to the Master
Servicer shall be deemed references to the Sub-Servicer, and the
Sub-Servicer shall forward a copy of any notice required by Section
3.19(j) of the PSA to the Master Servicer; and
(xix) the Sub-Servicer shall not process any defeasance requests and
any defeasance of a Mortgage Loan pursuant to Section 3.26 of the PSA, and
the Sub-Servicer shall forward any request for defeasance to the Master
Servicer within three (3) Business Days.
(b) The Sub-Servicer shall, promptly following the Sub-Servicer's
knowledge thereof, notify the Master Servicer in writing of all material
collection and customer service problems and furnish the Master Servicer with
copies of all written communications regarding such issues between the
Sub-Servicer and any Mortgagor or any third party in connection with the
Sub-Servicer's obligations under this Agreement, including any default notice
delivered to a Mortgagor. The Sub-Servicer shall promptly notify the Master
Servicer of any other significant events that become known to the Sub-Servicer
affecting any Mortgage Loan, Mortgagor or Mortgaged Property, such as a payment
default, a bankruptcy, judicial lien or casualty event, and (if requested) shall
furnish the Master Servicer with copies of any correspondence or other documents
in the possession of the Sub-Servicer related to any such matter. If litigation
is instituted with respect to a Mortgage Loan, the Sub-Servicer, if aware of
such litigation, shall notify the Master Servicer immediately as to the status
of the litigation and shall, when reasonably required or requested by the Master
Servicer, provide to the Master Servicer copies of all pertinent information in
the Sub-Servicer's possession related to such litigation, including copies of
the related servicing documents.
(c) The Sub-Servicer shall promptly notify the Master Servicer in writing
upon (i) discovery or receipt of notice by the Sub-Servicer of the occurrence of
any event that causes, or with notice or the passage of time or both would
cause, any Mortgage Loan to become a Specially Serviced Mortgage Loan or (ii)
the Sub-Servicer's having knowledge of any material Document Defect or Breach of
a Mortgage Loan-specific representations made by the related Trust Asset Seller
in its Trust Asset Purchase Agreement.
(d) With respect to all servicing responsibilities of the Master Servicer
under the PSA that are not being performed by the Sub-Servicer under this
Agreement, the Sub-Servicer shall reasonably cooperate with the Master Servicer
to facilitate the timely performance of such servicing responsibilities.
(e) No later than three (3) Business Days after each Distribution Date,
the Sub-Servicer shall deliver to the Master Servicer a statement prepared by
the Sub-Servicer setting forth the status of the Sub-Servicer Certificate
Account as of the close of business on the last day of the preceding calendar
month (together with a copy of the most recent monthly bank reconciliation
statement received by the Sub-Servicer with respect to the Sub-Servicer
Certificate Account) and showing the aggregate amount of deposits into and
withdrawals from the Sub-Servicer Certificate Account. In addition, the
Sub-Servicer shall prepare and deliver to the Master Servicer the Day One Report
(in the form of and setting the information called for by Exhibit I) on the
first business day of each month
(f) The Sub-Servicer shall deliver to the Master Servicer by electronic
transmission in a mutually acceptable format (with a hard copy upon request and
not later than the Business Day following such request): not later than 2:00
p.m. Charlotte, North Carolina Time on the Sub-Servicer Reporting Date, the
Collection Report, the CMSA Loan Periodic Update File, the CMSA Property File
and the CMSA Delinquent Loan Status Report, the CMSA Comparative Financial
Statement Report, the CMSA Servicer Watch List Report, the CMSA Loan Level
Reserve-LOC Report and the CMSA Financial File and the CMSA Total Loan Report,
each providing the required information as of the related Determination Date.
(g) The Sub-Servicer shall deliver to Master Servicer copies of any
annual, monthly or quarterly financial statements and rent rolls collected with
respect to the Mortgaged Properties, in each case within 30 days following
receipt thereof by the Sub-Servicer.
(h) [Reserved]
(i) The Sub-Servicer shall prepare or have prepared, and deliver to the
Master Servicer in electronic format reasonably acceptable to the Master
Servicer (using a naming convention for such electronic files that is reasonably
acceptable to the Master Servicer), a Property Inspection Report for each
inspection performed by it or on its behalf, in each case within ten (10) days
following the completion of the related inspection by the Sub-Servicer or a
third party at the Sub-Servicer's request. The Sub-Servicer will afford the
Master Servicer reasonable cooperation by providing such information as the
Master Servicer may request in connection with the Master Servicer's
responsibilities in Section 3.12(a) and (b) of the PSA. The Sub-Servicer shall
promptly but in no event later than thirty-five (35) days after the related
collection of the related operating statements forward each CMSA NOI Adjustment
Worksheet and CMSA Operating Statement Analysis Report to the Master Servicer
after each update electronically in Microsoft Excel format or such other format
as reasonably agreed to between the Master Servicer and the Sub-Servicer.
(j) Sub-Servicer shall produce such additional written reports with
respect to the Mortgage Loans as the Master Servicer may from time to time
reasonably request in order to comply with its obligations under the PSA,
provided that Sub-Servicer shall not be required to produce ad-hoc non-standard
reports.
(k) [Reserved].
(l) The Sub-Servicer affirms its agreement to comply with all of the
duties and obligations imposed on it as a "Reporting Servicer", a
"Sub-Servicer", an "Additional Servicer", a "Servicing Function Participant"
and/or a "Reporting Sub-Servicer" under Article XI of the PSA. In addition, by
its execution hereof, the Sub-Servicer agrees to such duties and obligations
also for the benefit of the Master Servicer as if such duties and obligations
inured directly to the benefit of the Master Servicer (in addition to any other
party to whom the benefit of any such duty or obligation may otherwise inure
under Article XI of the PSA). For the avoidance of doubt, the Sub-Servicer shall
reasonably cooperate with the Master Servicer to facilitate the performance by
the Master Servicer of the Master Servicer's duties and obligations under
Article XI of the PSA.
(i) In addition to the duties and obligations contemplated by
subsection (l), the Sub-Servicer agrees as follows:
(A) The firm that renders the attestation report for the
Sub-Servicer pursuant to Item 1122 of Regulation AB, as contemplated
under Section 11.11 of the PSA, shall be a firm that is registered
with the Public Company Accounting Oversight Board and either shall
be a "big four" accounting firm or shall be subject to the
reasonable approval of the Master Servicer.
(B) The Sub-Servicer shall deliver or caused to be delivered
to the Master Servicer a copy of each notice, report, certification
or other document delivered by or on behalf of the Sub-Servicer to
the Trustee or the Depositor under Article XI of the PSA, in each
case simultaneously with the delivery thereof to such Person.
(C) The Sub-Servicer hereby consents to the filing with the
SEC, and the unrestricted disclosure to the public, of this
Agreement, any amendment to this Agreement and any and all reports
and certifications delivered under this Agreement.
(D) The Sub-Servicer shall provide to the Master Servicer the
certification set forth on Exhibit G hereto no later than five (5)
Business Days prior to the date the Master Servicer must provide its
related certification under the PSA.
(m) Notwithstanding anything contained in this Agreement to the contrary,
the Sub-Servicer shall perform all of the remittance, reporting and
correspondence duties allocated to the Master Servicer under the PSA and related
Intercreditor Agreement with respect to a Companion Loan related to a Mortgage
Loan. In connection with any remittances to the applicable Companion Loan
Holder, the Sub-Servicer shall promptly provide written notice to the Master
Servicer and shall promptly send to the Master Servicer a copy of any written
correspondence sent to the related Companion Loan Holder. To the extent not
inconsistent with its duties under the PSA, the Master Servicer shall reasonably
cooperate with the Sub-Servicer in corresponding or otherwise dealing with such
holder(s), including to enforce any rights or remedies or otherwise pursue any
payment obligation under the related Intercreditor Agreement.
Section 3.02. Portfolio Manager.
(a) The Sub-Servicer shall designate a portfolio manager and other
appropriate personnel to receive documents and communications from the Master
Servicer and to provide assistance to the Master Servicer consistent with the
Master Servicer's supervisory authority over the Sub-Servicer under this
Agreement.
(b) The Master Servicer shall designate a portfolio manager and other
appropriate personnel to receive documents and communications from the
Sub-Servicer and to provide to the Sub-Servicer information, materials and
correspondence relating to the Mortgage Loans and the related Mortgagors which
may be necessary or appropriate to enable the Sub-Servicer to perform its
obligations under this Agreement.
Section 3.03. Maintenance of Errors and Omissions and Fidelity Coverage.
The Sub-Servicer shall maintain a fidelity bond in the form and amount
that would meet the servicing requirements of prudent institutional commercial
mortgage lenders and loan servicers. The Sub-Servicer shall be deemed to have
complied with this provision if one of its respective Affiliates has such
fidelity bond coverage and, by the terms of such fidelity bond, the coverage
afforded thereunder extends to the Sub-Servicer. In addition, the Sub-Servicer
shall keep in force during the term of this Agreement a policy or policies of
insurance covering loss occasioned by the errors and omissions of its officers
and employees in connection with its obligations to service the Mortgage Loans
hereunder in the form and amount that would meet the servicing requirements of
prudent institutional commercial mortgage lenders and loan servicers. All
fidelity bonds and policies of errors and omissions insurance obtained under
this Section 3.03 shall be issued by a Qualified Insurer. Notwithstanding the
foregoing, so long as the long term unsecured debt obligations of the
Sub-Servicer (or one of its respective affiliates) are rated not lower than "A2"
by ▇▇▇▇▇'▇ and "A" by S&P, then the Sub-Servicer (or one of its respective
affiliates) shall be entitled to provide self insurance, with respect to its
obligation to maintain a blanket fidelity bond or an errors and omissions
insurance policy.
Unless the Sub-Servicer self-insures in accordance with the provisions set
forth above, the Sub-Servicer shall deliver or cause to be delivered to the
Master Servicer evidence of such fidelity bond and insurance on or before the
Closing Date and thereafter (i) at least 30 days prior to the scheduled
expiration thereof, (ii) if not delivered in any calendar year pursuant to
clause (i) then upon each anniversary of the Closing Date, and (iii) from time
to time upon the Master Servicer's request.
Section 3.04. Delivery and Possession of Servicing Files.
The Sub-Servicer hereby acknowledges possession of the Sub-Servicing Files
and acknowledges and agrees that the Master Servicer has never previously had
possession of or control over, and therefore makes no warranty or representation
as to the contents or completeness of, the Sub-Servicing Files. The contents of
each Sub-Servicing File are and shall be held in a custodial capacity by the
Sub-Servicer for the benefit of the Trust as the owner thereof; the
Sub-Servicer's possession of the contents of each Sub-Servicing File is for the
sole purpose of servicing the related Mortgage Loan; and such possession by the
Sub-Servicer shall be in a custodial capacity only. The Sub-Servicer shall
release its custody of the contents of any Sub-Servicing File only in accordance
with written instructions from the Master Servicer or in accordance with the
PSA's grant (if any) to the Master Servicer of authority to release the
Servicing File under the PSA.
Section 3.05. Settlements Involving Sub-Servicer.
In connection with any legal proceedings that are subject to the control
of the Master Servicer under Section 3.30 of the PSA and involve the
Sub-Servicer hereunder, the Master Servicer shall not, subject to such Section
3.30, enter into any settlement that requires any admission of liability or
wrongdoing on the part of the Sub-Servicer without the Sub-Servicer's prior
written consent, which consent shall be granted or withheld in a reasonable time
under the particular circumstances.
ARTICLE IV.
SUB-SERVICER'S COMPENSATION AND EXPENSES
Section 4.01. Sub-Servicing Compensation.
(a) As compensation for its activities under this Agreement, the
Sub-Servicer shall be entitled to receive the Sub-Servicing Fee with respect to
each Mortgage Loan, which shall be payable from amounts on deposit in the
Sub-Servicing Certificate Account and any subaccount thereof, as applicable.
With respect to each Mortgage Loan and any Distribution Date, the Sub-Servicing
Fee shall be an amount accrued during the related loan accrual period at the
Sub-Servicing Fee Rate on the same principal amount as interest accrues on such
mortgage loan. The Sub-Servicing Fee shall be calculated on the same basis and
in the same manner as the Master Servicing Fee is calculated in the PSA.
The Sub-Servicer's right to receive the Sub-Servicing Fees to which it is
entitled may not be transferred in whole or in part except in connection with
the transfer of all of the Sub-Servicer's responsibilities and obligations under
and pursuant to this Agreement and except as otherwise expressly provided in
this Agreement.
(b) As additional sub-servicing compensation, the Sub-Servicer shall also
be entitled the following:
(i) all investment income earned (net of losses incurred) on amounts
on deposit in the Sub-Servicing Certificate Account and investment income
earned on amounts on deposit in the other Accounts (to the extent
consistent with the related Loan Documents and not payable to the related
Mortgagor under the Mortgage Loan or applicable law and to the extent
provided in PSA Section 3.06(b));
(ii) Default Charges to the extent set forth in Section 4.01(e);
(iii) the product of (A) 50% and (B) any amount collected on the
Mortgage Loans that is described by Section 3.11(b)(i) (other than Net
Default Charges), Section 3.11(b)(ii), Section 3.11(b)(iii) and Section
3.11(b)(vii) of the PSA (giving effect to the penultimate paragraph of
Section 3.11(b) of the PSA); provided, however, that the Sub-Servicer
shall be entitled to 100% of such amount in connection with any waiver,
consent or amendment that the Sub-Servicer is authorized to enter into
hereunder without the consent of the Master Servicer;
(iv) 100% of any amount collected on the Mortgage Loans that is
described by Section 3.11(b)(iv) of the PSA; and
(v) any Prepayment Interest Excesses collected on the Mortgage Loans
in any Collection Period for which the Master Servicer is not required to
apply Prepayment Interest Excesses on the mortgage loans serviced by it
under the PSA to offset Prepayment Interest Shortfalls on such mortgage
loans;
provided, however, that the Sub-Servicer shall not be entitled to
any such fees that may be collected in connection with a defeasance of any
Mortgage Loan.
(c) The Sub-Servicer shall promptly remit to the Master Servicer in
accordance with this Agreement, all amounts received with respect to the
Mortgage Loans (including each of those that become a Specially Serviced
Mortgage Loan or an REO Loan) that the Sub-Servicer is not entitled to hold or
retain pursuant to this Agreement.
(d) The Sub-Servicer shall pay all expenses incurred by it in connection
with its servicing activities under this Agreement and shall not be entitled to
reimbursement thereof except as otherwise specifically provided for in this
Agreement or in the PSA.
(e) The Sub-Servicer shall initially retain all Default Charges collected
in connection with a Mortgage Loan. The Master Servicer shall notify the
Sub-Servicer in a commercially practicable period of the calculation and the
amount of Default Charges (if any) required to be disbursed pursuant to Section
3.27(a), (b) and/or (c) of the PSA, and the Sub-Servicer shall remit such amount
to the extent that it has actually collected such amount to the Master Servicer
within two (2) Business Days of the Master Servicer's notice to remit and the
Sub-Servicer shall retain the remainder as additional sub-servicing
compensation. If the Sub-Servicer fails to remit such Default Charges in the
time period referenced in the preceding sentence, the Sub-Servicer will be
required to remit such Default Charges as received on a going forward basis
thereafter. The Master Servicer shall remit to the Sub-Servicer any Default
Charges that the Sub-Servicer is required to remit to the Companion Holder.
ARTICLE V.
THE MASTER SERVICER AND THE SUB-SERVICER
Section 5.01. Sub-Servicer Not to Assign; Merger or Consolidation of the
Sub-Servicer.
(a) Subject to Section 5.01(b), the Sub-Servicer will keep in full effect
its existence, rights and good standing as a corporation, bank, trust company,
partnership, limited liability company, association or other legal entity under
the laws of the jurisdiction of its formation and will not jeopardize its
ability to do business in each jurisdiction in which the Mortgaged Properties
are located or to protect the validity and enforceability of this Agreement, the
PSA, the Certificates, the Trust Assets or any of the Mortgage Loans and to
perform its respective duties under this Agreement.
(b) The Sub-Servicer may be merged or consolidated with or into any
Person, or transfer all or substantially all of its assets to any Person, in
which case any Person resulting from any merger or consolidation to which it
shall be a party, or any Person succeeding to its business, shall be the
successor of the Sub-Servicer hereunder, and shall be deemed to have assumed all
of the liabilities and obligations of the Sub-Servicer hereunder.
(c) This Agreement and the rights and benefits hereunder of the
Sub-Servicer shall not be assignable, and the duties and obligations hereunder
of such party shall not be delegable; provided, however, that (i) the
Sub-Servicer shall be entitled to employ sub-servicers to the extent provided in
Article III and (ii) the Sub-Servicer shall be entitled to assign, sell or
transfer its rights and duties under this Agreement (in whole and not in part)
with the approval of the Master Servicer, which approval shall not be
unreasonably withheld; provided, such sub-servicer (i) has a master servicer
rating of not lower than "CMS2" from Fitch, (ii) is then acting as a master
servicer in a commercial mortgage loan securitization rated by ▇▇▇▇▇'▇ within
six months before the date of transfer, provided that ▇▇▇▇▇'▇ has not downgraded
or withdrawn (or placed on watch status) the ratings assigned thereby to any
class of securities issued in such securitization citing the continuation of
such master servicer as a sole or material factor in such rating action and
(iii) if the Trust Fund or any trust holding a Companion Loan is then subject to
the reporting requirements of the Securities Exchange Act of 1934, as amended,
has certified to the Master Servicer that it has not theretofore defaulted on
its Regulation AB reporting and compliance document delivery obligations under
any pooling and servicing agreement for a commercial mortgage securitization.
Any such assignment under the prior sentence shall (i) not be effective until
such successor Sub-Servicer enters into a written agreement reasonably
satisfactory to the Master Servicer agreeing to be bound by the terms and
provisions of this Agreement; and (ii) not relieve the assigning Sub-Servicer of
any duties or liabilities arising or incurred prior to such assignment. Any
costs or expenses incurred in connection with such assignment shall be payable
by the assigning Sub-Servicer. Any assignment or delegation or attempted
assignment or delegation in contravention of this Agreement shall be null and
void.
(d) Except as provided above, the Sub-Servicer shall not resign from its
obligations and duties hereby imposed on them except upon determination that
such duties hereunder are no longer permissible under applicable law or are in
material conflict by reason of applicable law with any other activities carried
on by it. Any such determination permitting the resignation of the Sub-Servicer
shall be evidenced by an Opinion of Counsel (obtained at the expense of the
resigning Sub-Servicer) to such effect delivered to the Master Servicer,
together with a notice of resignation from the Sub-Servicer. No such resignation
shall become effective until a successor servicer reasonably approved by the
Master Servicer shall have assumed the Sub-Servicer's responsibilities and
obligations under this Agreement.
Section 5.02. Liability and Indemnification of the Sub-Servicer and the Master
Servicer.
(a) Neither the Sub-Servicer nor any of its affiliates, shareholders,
directors, officers, members, managers, partners, agents or employees shall
(subject to Section 6.01(a)) be under any liability to the Master Servicer for
any action taken, or for refraining from the taking of any action, in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Sub-Servicer or any such Person against any
breach of a representation or warranty made in this Agreement, or against any
expense or liability specifically required to be borne thereby without right of
reimbursement pursuant to the terms of this Agreement or imposed on the
Sub-Servicer pursuant to Section 2.01 for a breach of the Accepted Sub-Servicing
Practices, or against any liability which would otherwise be imposed by reason
of willful misfeasance, bad faith, fraud or negligence in the performance of its
obligations or duties under this Agreement or by reason of the negligent
disregard of its obligations or duties under this Agreement. The Sub-Servicer
and any director, officer, member, manager, agent or employee of the
Sub-Servicer may rely in good faith on any document of any kind that, prima
facie, is properly executed and submitted by any appropriate Person respecting
any matters arising under this Agreement.
(b) The Servicer shall indemnify and hold harmless the Sub-Servicer and
any affiliate, shareholder, director, officer, member, manager, partner, agent
or employee of the Sub-Servicer from and against any loss, liability, or expense
(including reasonable legal fees and expenses) incurred by reason of the Master
Servicer's (i) breach of any representation or warranty made by it in this
Agreement, (ii) willful misfeasance, bad faith, or negligence in the performance
of any of its obligations or duties under this Agreement, (iii) breach of any of
its covenants, obligations or duties under this Agreement, (iv) negligent
disregard of its obligations or duties under this Agreement, or (v) breach of
Accepted Servicing Practices. the Master Servicer agrees to use reasonable
efforts to pursue the Trust for indemnification against any loss, liability or
expense incurred by the Sub-Servicer in connection with the performance of the
Sub-Servicer's duties and obligations under this Agreement as to which the PSA
grants to the Master Servicer a right to indemnification from the Trust Fund.
(c) The Sub-Servicer shall indemnify and hold harmless the Master Servicer
and any affiliate, shareholder, director, officer, member, manager, partner,
agent or employee of the Master Servicer from and against any loss, liability,
penalty, fine, forfeiture, cost or expense (including reasonable legal fees and
expenses) incurred in connection with any claim or legal action incurred by
reason of the Sub-Servicer's (i) breach of any representation or warranty made
by it in this Agreement, (ii) willful misfeasance, bad faith, or negligence in
the performance of any of its obligations or duties under this Agreement, (iii)
breach of any of its covenants, obligations or duties under this Agreement, (iv)
negligent disregard of its obligations or duties under this Agreement, or (v)
breach of Accepted Sub-Servicing Practices.
(d) The indemnification provisions in this Section 5.02 shall survive the
termination of this Agreement.
Section 5.03. Representations and Warranties.
(a) The Sub-Servicer hereby represents, warrants and covenants to the
Master Servicer that as of the date of this Agreement:
(i) The Sub-Servicer is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States of America, and the Sub-Servicer is in compliance with the
laws of each state in which any Mortgaged Property is located to the
extent necessary to perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the
Sub-Servicer, and the performance and compliance with the terms of this
Agreement by the Sub-Servicer, will not violate the Sub-Servicer's
organizational documents or constitute a default (or an event that, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party or that is applicable to it or any of
its assets, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Sub-Servicer or its property is
subject, which violation or default (in each case), in the good faith and
reasonable judgment of the Sub-Servicer, is likely to affect materially
and adversely the ability of the Sub-Servicer to perform its obligations
under this Agreement;
(iii) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the Sub-Servicer, enforceable against the
Sub-Servicer in accordance with the terms hereof, subject to applicable
bankruptcy, insolvency, fraudulent transfer, receivership,
conservatorship, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(iv) The Sub-Servicer is not in default with respect to any order or
decree of any court, or any order, regulation or demand of any federal,
state, municipal or governmental agency, which default, in the reasonable,
good faith, judgment of the Sub-Servicer, is likely to materially and
adversely affect its ability to perform its duties and obligations
hereunder;
(v) No litigation is pending or, to the best of the Sub-Servicer's
knowledge, threatened against the Sub-Servicer that would prohibit the
Sub-Servicer from entering into this Agreement or, in the Sub-Servicer's
good faith and reasonable judgment, is likely to materially and adversely
affect the ability of the Sub-Servicer to perform its obligations under
this Agreement;
(vi) The Sub-Servicer will examine each Sub-Servicing agreement it
enters into, if any, and will be familiar with the terms thereof. Any such
Sub-Servicing agreements will comply with the provisions of Article III of
this Agreement;
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Sub-Servicer, or compliance by the Sub-Servicer with,
this Agreement or the consummation of the transactions contemplated by
this Agreement, except for any consent, approval, authorization or order
that has not been obtained or cannot be obtained prior to the actual
performance by the Sub-Servicer of its obligations under this Agreement,
and that, if not obtained would not have a materially adverse effect on
the ability of the Sub-Servicer to perform its obligations hereunder;
(viii) The Sub-Servicer has full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement; and
(ix) The Sub-Servicer currently maintains fidelity bond and errors
and omissions coverage meeting the requirements of Article III of this
Agreement.
(b) The Servicer hereby represents, warrants and covenants with the
Sub-Servicer that as of the date of this Agreement:
(i) The Master Servicer is a national banking association in good
standing under the laws of the United States of America, and the Master
Servicer is in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not violate the Master Servicer's
organizational documents or constitute a default (or an event that, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party or that is applicable to it or any of
its assets, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Master Servicer or its property is
subject, which violation or default (in each case), in the good faith and
reasonable judgment of the Master Servicer, is likely to affect materially
and adversely the ability of the Master Servicer to perform its
obligations under this Agreement;
(iii) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the Master Servicer, enforceable against the Master
Servicer in accordance with the terms hereof, subject to applicable
bankruptcy, insolvency, fraudulent transfer, receivership,
conservatorship, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(iv) The Master Servicer is not in default with respect to any order
or decree of any court, or any order, regulation or demand of any federal,
state, municipal or governmental agency, which default, in the reasonable,
good faith, judgment of the Master Servicer, is likely to materially and
adversely affect its ability to perform its duties and obligations
hereunder;
(v) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer that would
prohibit the Master Servicer from entering into this Agreement or, in the
Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect the ability of the Master Servicer to
perform its obligations under this Agreement;
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer, or compliance by the Master Servicer
with, this Agreement or the consummation of the transactions contemplated
by this Agreement, except for any consent, approval, authorization or
order that has not been obtained or cannot be obtained prior to the actual
performance by the Master Servicer of its obligations under this
Agreement, and that, if not obtained would not have a materially adverse
effect on the ability of the Master Servicer to perform its obligations
hereunder; and
(vii) The Master Servicer has full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(c) Upon discovery by either the Master Servicer or the Sub-Servicer of a
breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice thereof to the other
party.
(d) The representations and warranties of each of the Master Servicer and
the Sub-Servicer set forth in the provisions in this Section 5.03 shall survive
the execution and delivery of this Agreement and shall inure to the benefit of
the Persons for whose benefit they were made for so long as the Trust remains in
existence.
ARTICLE VI.
EVENTS OF DEFAULT; TERMINATION
Section 6.01. Events of Default.
(a) "Event of Default", wherever used in this Agreement, means any one of
the following events:
(i) (A) any failure by the Sub-Servicer to remit to the Master
Servicer when due any late payments and any principal prepayments or other
unscheduled payments or Balloon Payments (in each case including the
related interest payment paid by the Mortgagor) or (B) any failure by the
Sub-Servicer to remit to the Master Servicer when due any other amount
required to be remitted under this Agreement and the continuation of any
such failure described in this clause (B) for a period of one Business Day
after written notice of such failure shall have been given to the
Subservicer by the Master Servicer (such notice shall be deemed given in
accordance with Section 10.9 or when sent if delivered by electronic mail
to the following email address: ▇▇▇.▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇; or
(ii) [Reserved]
(iii) any failure of the Sub-Servicer to perform its duties in
strict accordance with Article XI of the PSA as incorporated and as
modified by Section 3.01(l) of this Agreement; provided, that the Trust
Fund is then subject to the reporting requirements of the Exchange Act and
the failure of the Sub-Servicer to perform such duties would subject the
parties to the PSA and/or the Trust Fund to liability under federal
securities laws; or
(iv) any failure on the part of the Sub-Servicer to duly observe or
perform in any material respect any other of the covenants or agreements
on the part of the Sub-Servicer contained in this Agreement, which failure
continues unremedied for a period of 25 days (ten (10) days in the case of
a failure to pay the premium for any insurance policy for any Mortgage
Loan required to be maintained hereunder) after the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given to the Sub-Servicer; or
(v) any breach on the part of the Sub-Servicer of any representation
or warranty contained in this Agreement that materially and adversely
affects the interests of any Class of Certificateholders and which
continues unremedied for a period of 25 days after the date on which
written notice of such breach, requiring the same to be remedied, shall
have been given to the Sub-Servicer; or
(vi) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Sub-Servicer and such decree or order shall have remained in force
undischarged, undismissed or unstayed for a period of 50 days; or
(vii) the Sub-Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to it or of or relating
to all or substantially all of its property; or
(viii) the Sub-Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of any applicable bankruptcy, insolvency or reorganization statute, make
an assignment for the benefit of its creditors, voluntarily suspend
payment of its obligations, take any corporate action in furtherance of
the foregoing, or take any other actions indicating its insolvency or
inability to pay its obligations; or
(ix) the Master Servicer shall have received and promptly forwarded
to the Sub-Servicer, or the Sub-Servicer itself shall have received,
written notice to the effect that the continuation of the Sub-Servicer in
such capacity (A) would result in a qualification, downgrade or withdrawal
of one or more ratings assigned by any Rating Agency to the Certificates
or (B) would result or has resulted in any rating assigned by any Rating
Agency to the Certificates otherwise becoming the subject of a "negative"
credit watch, and in any event such circumstances shall not have changed,
as confirmed to the Master Servicer in writing by such Rating Agency,
within 25 days following the date on which the Master Servicer, or the
Sub-Servicer, first received such notice; or
(x) ▇▇▇▇▇'▇ has (A) qualified, downgraded or withdrawn its rating or
ratings of one or more Classes of Certificates, or (B) placed one or more
Classes of Certificates on "watch status" in contemplation of possible
rating downgrade or withdrawal (and such "watch status" placement shall
not have been withdrawn by ▇▇▇▇▇'▇ within 25 days of such placement), and,
in case of either of clause (A) or (B), citing servicing concerns with the
Sub-Servicer as the sole or a material factor in such rating action; or
(xi) Fitch confirms in writing that the Sub-Servicer no longer has a
servicer rating of at least "CPS3"; or
(xii) the Sub-Servicer creates or causes an "Event of Default" under
the PSA.
(b) Upon any Event of Default, the Master Servicer may, by notice in
writing to the Sub-Servicer, in addition to whatever rights the Master Servicer
may have at law or in equity, including injunctive relief and specific
performance, immediately terminate all of the rights and obligations of the
Sub-Servicer under this Agreement and in and to the Mortgage Loans and the
proceeds thereof, subject to Section 6.02, without the Master Servicer incurring
any penalty or fee of any kind whatsoever in connection therewith. Except as
otherwise expressly provided in this Agreement, no remedy provided for by this
Agreement shall be exclusive of any other remedy, and each and every remedy
shall be cumulative and in addition to any other remedy and no delay or omission
to exercise any right or remedy shall impair any such right or remedy or shall
be deemed to be a waiver of any Event of Default. On or after the receipt by the
Sub-Servicer of such written notice of termination from the Master Servicer, all
authority and power of the Sub-Servicer in this Agreement, whether with respect
to the Mortgage Loans or otherwise, shall pass to and be vested in the Master
Servicer, and the Sub-Servicer agrees to cooperate with the Master Servicer in
effecting the termination of the Sub-Servicer's responsibilities and rights
under this Agreement, including the remittance of funds and the transfers of the
Sub-Servicing Files as set forth in Section 6.02.
(c) Upon discovery by the Sub-Servicer of any Event of Default (regardless
of whether any notice has been given as provided in this Agreement or any cure
period provided in this Agreement has expired), the Sub-Servicer shall give
prompt written notice thereof to the Master Servicer.
(d) The Master Servicer may waive in writing any default by the
Sub-Servicer in the performance of its obligations under this Agreement and its
consequences. Upon any such waiver of a past default, such default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been remedied for every purpose of this Agreement. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereon except
to the extent expressly so waived.
(e) If the Sub-Servicer fails to remit to the Master Servicer when due any
amount required to be remitted under this Agreement (whether or not such failure
constitutes an Event of Default), then interest shall accrue on the amount that
was required to be remitted, and the Sub-Servicer shall promptly pay such
interest to the Master Servicer, at a per annum rate equal to the Reimbursement
Rate from and including the date when such remittance was required to be made to
but excluding the day when such remittance is actually made.
Section 6.02. Specially Serviced Mortgage Loans.
At such time as a Mortgage Loan becomes a Specially Serviced Mortgage
Loans, the servicing authorities and duties of the Sub-Servicer hereunder that
are permitted to be performed by the Special Servicer under the PSA shall cease.
If such Specially Serviced Mortgage Loan becomes a Corrected Mortgage Loan, the
authorities and duties of the Sub-Servicer that ceased as set forth above shall
thereupon resume.
Section 6.03. Termination of Agreement.
(a) This Agreement shall be terminated:
(i) pursuant to Section 6.01, if the Master Servicer elects to
terminate the Sub-Servicer following an Event of Default; or
(ii) upon resignation by the Sub-Servicer as provided in Section
5.01; or
(iii) with respect to any Mortgage Loan, upon the purchase or
repurchase of such Mortgage Loan pursuant to the PSA or the applicable
Intercreditor Agreement and such Mortgage Loan is no longer serviced and
administered under the PSA (but in such event, as between the Master
Servicer and the Sub-Servicer, if an Intercreditor Agreement contemplates
a successor servicing agreement, the Sub-Servicer shall be the party
entitled to negotiate for and be the servicer under such successor
servicing agreement).
(b) If the Master Servicer's responsibilities and duties as Master
Servicer under the PSA have been assumed by the Trustee, the Trustee may,
without act or deed on the part of the Trustee, succeed to all of the rights
and, except to the extent they arose prior to the date of such succession,
obligations of the Master Servicer under this Agreement as provided in PSA
Section 3.01, and the Sub-Servicer shall be bound to the Trustee under all of
the terms, covenants and conditions of this Agreement with the same force and
effect as if the Trustee was originally the Master Servicer under this
Agreement; and the Sub-Servicer does hereby attorn to the Trustee, as the Master
Servicer under this Agreement, said attornment to be effective and
self-operative without the execution of any further instruments on the part of
any of the parties hereto immediately upon the Trustee succeeding to the
interest of the Master Servicer under this Agreement. The Sub-Servicer agrees,
however, upon written demand by the Trustee to promptly execute and deliver to
the Trustee an instrument in confirmation of the foregoing provisions,
reasonably satisfactory to the Trustee, in which the Sub-Servicer shall
acknowledge such attornment and shall confirm to the Trustee its agreement to
the terms and conditions of this Agreement. References to the Trustee under this
Section 6.03 shall include any designee of the Trustee or any successor Master
Servicer under the PSA.
(c) Termination pursuant to this Section or as otherwise provided in this
Agreement shall be without prejudice to any rights of the Master Servicer or the
Sub-Servicer which may have accrued through the date of termination under this
Agreement. In connection with any such termination, the Sub-Servicer shall: (i)
within one (1) Business Day after the Sub-Servicer's receipt of the notice of
termination, remit all funds in the related Accounts to the Master Servicer or
such other Person designated by the Master Servicer, net of accrued
Sub-Servicing Fees and Additional Sub-Servicing Compensation through the
termination date that are due and payable to the Sub-Servicer; (ii) promptly
(and in no event later than five (5) Business Days after the Sub-Servicer's
receipt of the notice of termination) deliver all related Sub-Servicing Files to
the Master Servicer or its designee; and (iii) fully cooperate with the Master
Servicer to effectuate an orderly transition of the servicing of the related
Mortgage Loans. All rights of the Sub-Servicer relating to the payment of its
Sub-Servicing Fees and Additional Sub-Servicing Compensation and all liabilities
of the Sub-Servicer, which in any such case accrued under the terms of this
Agreement on or before the date of such termination, shall continue in full
force and effect until payment or other satisfaction in accordance with this
Agreement.
(d) If the Master Servicer is terminated under Article VII of the PSA and
an Event of Default on the part of the Sub-Servicer has not occurred under this
Agreement, the Trustee (or a successor master servicer appointed by it) under
the PSA shall assume and be bound by the terminated Servicer's obligations and
responsibilities under this Agreement.
ARTICLE VII.
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment.
This is the entire agreement between the parties with respect to the
matters set forth in this Agreement, and all prior oral and written agreements
with respect to the matters set forth in this Agreement are superseded by the
terms of this Agreement. This Agreement, including the provisions of this
Section 7.01, may not be modified except by written amendment to this Agreement
signed by the party or parties effected by the same, and the parties hereby: (a)
expressly agree that it shall not be reasonable for either of them to rely on
any alleged, non-written amendment to this Agreement; (b) irrevocably waive any
and all right to enforce any alleged, non-written amendment to this Agreement;
and (c) expressly agree that it shall be beyond the scope of authority (apparent
or otherwise) for any of their respective agents to agree to any non-written
modification of this Agreement.
Section 7.02. Governing Law.
This Agreement shall be construed in accordance with the internal laws of
the State of New York without regard to principles of conflicts of laws, and the
obligations, rights and remedies of the parties under this Agreement shall be
determined in accordance with such laws.
Section 7.03. Notices.
(a) All demands, notices and communications under this Agreement shall be
in writing and addressed in each case as follows:
(i) if to the Sub-Servicer, at
▇▇▇▇▇ Fargo Bank, National Association
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Commercial Mortgage Servicing
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇. ▇▇▇▇▇▇ Warden, Esq.
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
and to:
▇▇▇▇▇ Fargo Commercial Mortgage Servicing
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Investor Reporting Manager
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(ii) if to the Master Servicer, at:
Bank of America, National Association
Capital Markets Servicing Group, NC1-026-06-01
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Servicing Manager
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Reference: Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-1
with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(b) Any of the above-referenced Persons may change its address for notices
under this Agreement by giving notice of such change to the other Persons. All
notices and demands shall be deemed to have been given at the time of the
delivery at the address of such Person for notices under this Agreement if
personally delivered, mailed by certified or registered mail, postage prepaid,
return receipt requested, or sent by overnight courier or facsimile.
(c) To the extent that any demand, notice or communication under this
Agreement is given to the Sub-Servicer by a Servicing Officer of the Master
Servicer, such Servicing Officer shall be deemed to have the requisite power and
authority to bind the Master Servicer with respect to such communication, and
the Sub-Servicer may conclusively rely upon and shall be protected in acting or
refraining from acting upon any such communication. To the extent that any
demand, notice or communication under this Agreement is given to the Master
Servicer by a Servicing Officer of the Sub-Servicer, such Servicing Officer
shall be deemed to have the requisite power and authority to bind the
Sub-Servicer with respect to such communication, and the Master Servicer may
conclusively rely upon and shall be protected in acting or refraining from
acting upon any such communication.
Section 7.04. Consistency with PSA; Severability of Provisions.
This Agreement shall be subject to the provisions of the PSA, which
provisions shall be paramount and controlling and shall supersede the provisions
of this Agreement to the extent of any conflicts or inconsistencies. If one or
more of the provisions of this Agreement shall be for any reason whatever held
by a court to be invalid or unenforceable or shall be determined by a court to
be inconsistent with the PSA, such provisions shall be deemed severable from the
remaining covenants, agreements and provisions of this Agreement and such
invalidity or unenforceability shall in no way affect the validity or
enforceability of such remaining provisions or the rights of any parties hereto.
To the extent permitted by law, the parties hereto hereby waive any provision of
law that renders any provision of this Agreement invalid or unenforceable in any
respect.
Section 7.05. Binding Effect; No Partnership; Counterparts.
Subject to Section 5.01 with respect to the Sub-Servicer, the provisions
of this Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of the parties hereto. The parties hereby
acknowledge and agree that the Trustee, for the benefit of the
Certificateholders, shall be a third party beneficiary under this Agreement;
provided, that (except to the extent that the Trustee or its designee or a
successor Master Servicer assumes the obligations of the Master Servicer under
this Agreement pursuant to Section 6.03 of this Agreement) none of the Trust
Fund, the Trustee, any successor Master Servicer, the Special Servicer or any
Certificateholder shall have any duties under or any liabilities arising from
this Agreement. Nothing contained in this Agreement shall be deemed or construed
to create a partnership or joint venture between the parties hereto and the
services of the Sub-Servicer shall be rendered as an independent contractor for
the Master Servicer. For the purpose of facilitating the execution of this
Agreement as provided in this Agreement and for other purposes, this Agreement
may be executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument. A signature of a party by facsimile
or other electronic transmission shall be deemed to constitute an original and
fully effective signature of such party.
Section 7.06. Construction.
The article and section headings in this Agreement are for convenience of
reference only, and shall not limit or otherwise affect the meaning thereof.
This Agreement shall be construed without regard to any presumption or rule
requiring construction against the party causing such instrument or any portion
thereof to be drafted. Any pronoun used in this Agreement shall be deemed to
cover all genders. The terms "include", "including" and similar terms shall be
construed as if followed by the phrase "without being limited to." The term "or"
has, except where otherwise indicated, the inclusive meaning represented by the
phrase "and/or." The words "hereof," "herein," "hereby," "hereunder," and
similar terms in this Agreement refer to this Agreement as a whole and not to
any particular provision or section of this Agreement. Words importing the
singular number shall mean and include the plural number, and vice versa.
[Remainder of Page Intentionally Blank; Signature Page Follows]
IN WITNESS WHEREOF, the Master Servicer and the Sub-Servicer have caused
this Agreement to be duly executed as of the date first above written.
SUB-SERVICER:
▇▇▇▇▇ FARGO BANK, N.A.,
a national banking association
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice President
MASTER SERVICER:
BANK OF AMERICA, NATIONAL ASSOCIATION, a
national banking association
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, Principal
EXHIBIT "A"
MORTGAGE LOAN SCHEDULE
Sub-Servicing Fee Rate in
Loan Number Property Name Cut-off Date Balance Basis Points
----------- -------------------------------- -------------------- -------------------------
1 Solana $ 220,000,000.00 1
1 Solana Pari Passu Note A-2 $ 140,000,000.00 1
2 StratReal Industrial Portfolio I $ 190,000,000.00 1
3 Tanforan Shopping Center $ 144,000,000.00 1
4 Sussex Commons I & II $ 102,583,000.00 1
5 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ $ 47,000,000.00 1
6 Greenbriar Corporate Center $ 16,650,000.00 1
7 ▇▇▇▇▇▇▇▇ Village $ 3,280,000.00 1
EXHIBIT "B"
FORM OF
COLLECTION REPORT
2007-1
(Deal Name)
(Subservicer Name)
(Reporting Period)
(Collection Period)
▇▇▇▇://▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇/▇▇▇▇/▇▇▇▇/▇▇▇▇▇▇▇▇▇▇(▇▇▇▇ Name)
(Subservicer Name)
(Reporting Period)
(Collection Period)
(L3) (L8) (L10) (L6) (L25) (L24) (L23) (L28)
--------------- ----------- ------- --------- --------- ------------- --------- --------- ---------------
Scheduled Total Scheduled Scheduled
Master Servicer Subservicer Paid to Current Principal Scheduled P&I Principal Interest Other Principal
Loan Number Loan Number Date Note Rate Balance Due Payment Payment Adjustments
(L27) (I30) (I31) (L14)
--------------- -------------- ----------- --------------- --------------- ----------- ----------- --------------
Unscheduled
Principal Prepayment Prepayment Subservicer
Master Servicer Collections Penalty/Yld Interest Excess Subservicer Fee Subservicer Remittance
Loan Number (Curtailments) Maint Rec'd (Shortfall) Rate Service Fee Amount Assumption Fee
--------------- ------------ -------- --------- --------
Actual Actual
Master Servicer Default Principal Interest
Loan Number Late Charges Interest Payment Payment
EXHIBIT "C"
ESCROW REPORT
ESCROW REPORT
as of ____________
Master Payment Payments Ending
Servicer Beginning Transaction Applied Made Escrow
Loan # Balance Date to Escrow From Escrow Balance
-------- --------- ----------- --------- ----------- -------
EXHIBIT "D"
PROPERTY INSPECTION REPORT
[RESERVED]
EXHIBIT "E"
FORM OF ADDITIONAL REPORTS
Quarterly Tax Monitoring Report
Deal: BANC OF AMERICA COMMERCIAL MORTGAGE INC., COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2007-1
Sub-Servicer:
Period Ending:
Bank of
Sub-Servicer America Borrower Property Property Parcel Taxing Next Tax Last Date Last Tax
Loan No. Loan No. Name Name Address Number Authority Due Date Tax Paid Amount Paid
------------ -------- -------- -------- -------- ------ --------- -------- --------- -----------
Certified By: _____________________
Title: _____________________
Quarterly UCC Monitoring Report
Deal: BANC OF AMERICA COMMERCIAL MORTGAGE INC., COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2007-1
Sub-Servicer:
Period Ending:
Bank of Original
Sub-Servicer America Borrower Property Filing Original Continuation Next Filing
Loan No. Loan No. Name Name Jurisdiction Number Filing Date Filing Number Date
------------ -------- -------- -------- ------------ -------- ----------- ------------- -----------
Certified By: ______________________
Title: _____________________
Quarterly Insurance Monitoring Report
Deal: BANC OF AMERICA COMMERCIAL MORTGAGE INC., COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2007-1
Sub-Servicer:
Period Ending:
Bank of Policy Terrorism
Sub-Servicer America Borrower Property Expiration Insurance Type of Policy Coverage Deductible Coverage
Loan No. Loan No. Name Name Date Carrier Coverage* Number Amount Amount (Y/N)
------------ -------- -------- -------- ---------- --------- --------- ------ -------- ---------- ---------
Meets Meets
Loss Payee Qualified Mtge
Terrorism Terrorism Endorsement Ins. Doc
Sub-Servicer Coverage Deductible Reflects Ratings Req
Loan No. Amount Amount Trust (Y/N) (Y/N) (Y/N)
------------ --------- ---------- ----------- --------- -----
* Type of Coverage column should include each type of insurance coverage on a
separate line including hazard, business interruption, boiler and machinery,
ordinance and law, liability, umbrella, flood(if applicable), earthquake(if
applicable), etc.
EXHIBIT "F"
FORM OF ACCOUNT CERTIFICATION
Securitization: ________________________________________________________________
Sub-Servicer: __________________________________________________________________
_______________________ New Account ______________ Change of Account Information
Indicate purpose of account (check all that apply):
______ Principal & Interest ______ Deposit Clearing
______ Taxes & Insurance ______ Disbursement Clearing
______ Reserves (non interest bearing) ______ Suspense
______ Reserves (interest bearing)
Account Number:_________________________________________________________________
Account Name:___________________________________________________________________
Depository Institution (and Branch):
Name:___________________________________________________________________
Street:_________________________________________________________________
City, State, Zip:_______________________________________________________
Rating Agency:________________ Rating:_______________________
Please note that the name of the account must follow the guideline
specifications detailed in the applicable agreement.
Prepared by:____________________________________________________________________
Signature:______________________________________________________________________
Title:__________________________________________________________________________
Date:___________________________________________________________________________
Telephone:______________________ Fax:______________________________
EXHIBIT "G"
FORM OF CERTIFICATION TO BE
PROVIDED TO MASTER SERVICER
Re: Banc of America Commercial Mortgage Trust Commercial Mortgage Pass-Through
Certificates, Series 2007-1
I, [identify the certifying individual], a [title] of [name of
company], certify to Bank of America, National Association, as Master Servicer
under the Pooling and Servicing Agreement and its officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification (capitalized terms used herein without definition shall have the
meanings assigned to such terms in the Pooling and Servicing Agreement), that:
(a) All of the distribution, servicing and other information
required to be provided to the Master Servicer under the Sub-Servicing Agreement
has been provided to the Master Servicer and is included in the servicing
reports delivered by the Sub-Servicer to the Master Servicer;
(b) Based on my knowledge, the servicing information relating to the
Sub-Servicer referenced in section (a) above, taken as a whole, does not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period covered by
the servicing reports;
(c) I am responsible for reviewing the activities performed by the
Sub-Servicer under the Sub-Servicing Agreement and based upon my knowledge and
the annual compliance reviews conducted in preparing the servicer compliance
statements required under Item 1123 of Regulation AB (which requirements may
change after the date hereof) with respect to the Sub-Servicer, and except as
disclosed in the compliance certificate delivered by the Master Servicer under
Section 11.10 of the Pooling and Servicing Agreement, the Sub-Servicer has
fulfilled its obligations under the Sub-Servicing Agreement in all material
respects;
(d) The accountant's report delivered pursuant to Section 11.11 of
the Pooling and Servicing Agreement discloses all significant deficiencies
relating to the Sub-Servicer's compliance with the minimum servicing standards
based upon the report provided by an independent public accountant; and
(e) All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation reports on
assessment of compliance with servicing criteria for asset-backed securities
with respect to the Sub-Servicer required pursuant to the Sub-Servicing
Agreement and in accordance with Item 1122 of Regulation AB and Exchange Act
Rules 13a-18 and 15d-18 (which requirements may change after the date hereof),
have been included as an exhibit to this Certification, except as otherwise
disclosed in this Certification. Any material instances of noncompliance
described in such reports have been disclosed in this report.
This certification may be referred to and relied upon by the Master Servicer in
providing any certifications, and otherwise performing its obligations under,
Section 11.06 of the Pooling and Servicing Agreement. This certificate may not
be relied upon by the Master Servicer for any other purpose and may not be used,
circulated to, or relied upon by any other person.
Date: _________________________
[NAME OF COMPANY]
__________________________________
[Signature]
[Title]
EXHIBIT "H"
SEMI-ANNUAL SERVICING CERTIFICATION
Sub-Servicer:_______________
RE: Series_______________
Pursuant to the Sub-Servicing Agreement(s) between Bank of America, National
Association and [Sub-Servicer], we certify with respect to each mortgage loan
serviced by us for Bank of America, National Association that, as of the period
ending ____________________, except as otherwise noted below:
All taxes, assessments and other governmental charges levied against the
mortgaged premises, ground rents payable with respect to the mortgaged premises,
if any, which would be delinquent if not paid, have been paid.
Based on [Sub-Servicer's] monitoring of the insurance in accordance with the
Servicing Standard, all required insurance policies are in full force and effect
on the mortgaged premises in the form and amount and with the coverage required
by the Sub-Servicing Agreement(s).
All necessary action has been taken to continue all UCC Financing Statements in
favor of the originator of each mortgage loan or in favor of any assignee prior
to the expiration of such UCC Financing Statements.
All reserves are maintained and disbursed in accordance with the loan documents
and no obligation for which a reserve is held has not been completed within the
time required by the applicable document.
If there are any exceptions to any of the items required in any of the
above-referenced paragraphs, such exceptions shall be noted in a schedule
attached hereto substantially in the form of Exhibit D to the Sub-Servicing
Agreement.
EXCEPTIONS:____________________________________________
Servicing Officer_________________________ Date__________________________
EXHIBIT "I"
Form of Day One Report
Sub-Service Name:
Pool Name:
For Payment Due:_______________________
Sub Beginning Actual Scheduled Scheduled Scheduled Ending
Master Servicer Servicer Principal Paid to Monthly P&I Principal Interest Principal
Loan # Loan # Balance Date Payment Payment Payment Balance Interest Rate
--------------- -------- ---------- ------- ------------ ---------- ---------- ---------------------- -------------
$- $- $- $- $- 0.000%
$- $- $- $- $- 0.000%
$- $- $- $- $- 0.000%
--------------- -------- ---------- ------- ------------ ---------- ---------- ---------------------- -------------
TOTAL $- $- $- $- $-
Master Servicer Sub-Service Fee Sub-Service Pre-payment Partial
Loan # Rate Fee Penalty Prepayment Full Prepayment Prepayment Date
--------------- --------------- ------------ ------------ ----------- --------------- ---------------
0.000% $- $- $- $-
0.000% $- $- $- $-
0.000% $- $- $- $-
--------------- --------------- ------------ ------------ ----------- --------------- ---------------
TOTAL $- $- $- $-
Prepared By:______________________________
Title:____________________________________
