EXHIBIT 4
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XXXX XX XXXXXXX COMMERCIAL MORTGAGE INC.,
Depositor,
BANK OF AMERICA, NATIONAL ASSOCIATION,
Master Servicer,
MIDLAND LOAN SERVICES, INC.,
Special Servicer,
and
XXXXX FARGO BANK, N.A.,
Trustee and REMIC Administrator
---------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of July 1, 2007
---------------------------------
$3,515,654,613
Commercial Mortgage Pass-Through Certificates
Series 2007-3
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL AND
THE CERTIFICATES
Section 1.01 Defined Terms................................................
Section 1.02 Rules of Construction; Other Definitional Provisions.........
Section 1.03 Certain Calculations in Respect of the Mortgage Pool.........
Section 1.04 Cross-Collateralized Mortgage Loans..........................
Section 1.05 Incorporation of Preliminary Statement.......................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance of REMIC I by Trustee.............................
Section 2.03 Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Material Document Defects and
Material Breaches...........................................
Section 2.04 Representations and Warranties of the Depositor..............
Section 2.05 Representations and Warranties of the Master Servicer........
Section 2.06 Representations and Warranties of the Special Servicer.......
Section 2.07 Representations and Warranties of the Trustee and the
REMIC Administrator.........................................
Section 2.08 [RESERVED]...................................................
Section 2.09 Issuance of the Class R-I Certificates; Creation of the
REMIC I Regular Interests...................................
Section 2.10 Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by the Trustee.....................................
Section 2.11 Issuance of the REMIC II Certificates, Class A-2FL
Regular Interest and Class A-MFL Regular Interest...........
Section 2.12 Loss of Value Reserve Fund Provisions........................
Section 2.13 Designation of Grantor Trusts................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Serviced Loans.........................
Section 3.02 Collection of Mortgage Loan Payments.........................
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Account; Servicing Advances; Reserve Accounts.....
Section 3.04 Certificate Account, Distribution Account, REMIC I
Distribution Account, REMIC II Distribution Account,
Excess Liquidation Proceeds Account, Class A-2FL
Floating Rate Account, Class A-MFL Floating Rate
Account, Interest Reserve Account and Serviced Whole
Loan Custodial Account......................................
Section 3.05 Permitted Withdrawals From the Certificate Account, the
Distribution Account, the Serviced Whole Loan Custodial
Accounts, the Class A-2FL Floating Rate Account, the
Class A-MFL Floating Rate Account and the Excess
Liquidation Proceeds Account................................
Section 3.06 Investment of Funds in the Certificate Account, the
Interest Reserve Account, the REMIC I Distribution
Account, the REMIC II Distribution Account, the Excess
Liquidation Proceeds Account, the Class A-2FL Floating
Rate Account, the Class A-MFL Floating Rate Account and
the REO Account.............................................
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.......................................
Section 3.08 Enforcement of Alienation Clauses............................
Section 3.09 Realization Upon Defaulted Serviced Loans....................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.11 Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
Regarding Back-up Servicing Advances........................
Section 3.12 Inspections; Collection of Financial Statements..............
Section 3.13 [RESERVED]...................................................
Section 3.14 [RESERVED]...................................................
Section 3.15 Access to Certain Information................................
Section 3.16 Title to REO Property; REO Account...........................
Section 3.17 Management of REO Property...................................
Section 3.18 Resolution of Defaulted Serviced Loans and REO Properties....
Section 3.19 Additional Obligations of the Master Servicer and the
Special Servicer............................................
Section 3.20 Modifications, Waivers, Amendments and Consents..............
Section 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping; Asset Status Report; Directing
Certificateholder...........................................
Section 3.22 Sub-Servicing Agreements.....................................
Section 3.23 Designation of the Special Servicer by the Majority
Certificateholder of the Controlling Class or the
Controlling Holder..........................................
Section 3.24 Confidentiality..............................................
Section 3.25 No Solicitation of Prepayments...............................
Section 3.26 Certain Matters with Respect to Serviced Loans Permitting
Defeasance, Franchise Mortgage Loans and Certain
Mortgage Loans Permitting Additional Debt...................
Section 3.27 Application of Default Charges...............................
Section 3.28 Matters Regarding the Whole Loans............................
Section 3.29 Matters Regarding the Non-Serviced Whole Loans...............
Section 3.30 Certain Powers of the Controlling Holders and Certain
Intercreditor Matters.......................................
Section 3.31 Class A-2FL Swap Contract....................................
Section 3.32 Class A-MFL Swap Contract....................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
Section 4.01 Distributions................................................
Section 4.02 Statements to Certificateholders; Certain Reports by the
Master Servicer and the Special Servicer....................
Section 4.03 P&I Advances.................................................
Section 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses....................................................
Section 4.05 Interest Reserve Account.....................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................
Section 5.02 Registration of Transfer and Exchange of Certificates........
Section 5.03 Book-Entry Certificates......................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.05 Persons Deemed Owners........................................
Section 5.06 Certification by Certificate Owners..........................
Section 5.07 Regarding the Identification of Certain Certificateholders...
ARTICLE VI
THE DEPOSIIITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE REMIC
ADMINISTRATOR
Section 6.01 Liability of the Depositor, the Master Servicer, the
Special Servicer and the REMIC Administrator................
Section 6.02 Merger, Consolidation or Conversion of the Depositor, the
Master Servicer, the Special Servicer or the REMIC
Administrator...............................................
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator
and Others..................................................
Section 6.04 Master Servicer, Special Servicer and REMIC Administrator
Not to Resign...............................................
Section 6.05 Rights of the Depositor and the Trustee in Respect of the
Master Servicer, the Special Servicer and the REMIC
Administrator...............................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default............................................
Section 7.02 Trustee to Act; Appointment of Successor.....................
Section 7.03 Form 8-K Information; Notification to Certificateholders.....
Section 7.04 Waiver of Events of Default..................................
Section 7.05 Additional Remedies of Trustee Upon Event of Default.........
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee............................................
Section 8.02 Certain Matters Affecting the Trustee........................
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Loans.......................................
Section 8.04 Trustee May Own Certificates.................................
Section 8.05 Fees of Trustee; Indemnification of Trustee..................
Section 8.06 Eligibility Requirements for Trustee.........................
Section 8.07 Resignation and Removal of the Trustee.......................
Section 8.08 Successor Trustee............................................
Section 8.09 Merger or Consolidation of Trustee...........................
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
Section 8.11 Appointment of Custodians....................................
Section 8.12 Access to Certain Information................................
Section 8.13 Maintenance of Mortgage File.................................
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans..............................................
Section 9.02 Additional Termination Requirements..........................
ARTICLE X
ADDITIONAL REMIC AND GRANTOR TRUST PROVISIONS
Section 10.01 REMIC Administration.........................................
Section 10.02 Depositor, Master Servicer, Special Servicer and Trustee
to Cooperate with REMIC Administrator.......................
Section 10.03 Fees of the REMIC Administrator..............................
Section 10.04 Use of Agents................................................
Section 10.05 Grantor Trust Administration.................................
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness........................
Section 11.02 Succession; Subcontractors...................................
Section 11.03 Filing Obligations...........................................
Section 11.04 Form 10-D Filings............................................
Section 11.05 Form 10-K Filings............................................
Section 11.06 Xxxxxxxx-Xxxxx Certification.................................
Section 11.07 Form 8-K Filings.............................................
Section 11.08 Form 15 Filing...............................................
Section 11.09 Annual Compliance Statements.................................
Section 11.10 Annual Reports on Assessment of Compliance with Servicing
Criteria....................................................
Section 11.11 Annual Independent Public Accountants' Servicing Report......
Section 11.12 Indemnification..............................................
Section 11.13 Signatures; Article XI Notices...............................
Section 11.14 Amendments...................................................
Section 11.15 Certain Matters Relating to the Securitization of
Companion Loans.............................................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment....................................................
Section 12.02 Recordation of Agreement; Counterparts.......................
Section 12.03 Limitation on Rights of Certificateholders...................
Section 12.04 Governing Law................................................
Section 12.05 Notices......................................................
Section 12.06 Severability of Provisions...................................
Section 12.07 Successors and Assigns; Beneficiaries........................
Section 12.08 Article and Section Headings.................................
Section 12.09 Notices to and from Rating Agencies..........................
Section 12.10 Requests for Information; Standing Requests..................
Section 12.11 Insolvency...................................................
LIST OF EXHIBITS
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Form of Class A-2FL Certificate
EXHIBIT A-4 Form of Class A-3 Certificate
EXHIBIT A-5 Form of Class A-AB Certificate
EXHIBIT A-6 Form of Class A-4 Certificate
EXHIBIT A-7 Form of Class A-5 Certificate
EXHIBIT A-8 Form of Class A-1A Certificate
EXHIBIT A-9 Form of Class XW Certificate
EXHIBIT A-10 Form of Class A-M Certificate
EXHIBIT A-11 Form of Class A-MF Certificate
EXHIBIT A-12 Form of Class A-MFL Certificate
EXHIBIT A-13 Form of Class A-J Certificate
EXHIBIT A-14 Form of Class B Certificate
EXHIBIT A-15 Form of Class C Certificate
EXHIBIT A-16 Form of Class D Certificate
EXHIBIT A-17 Form of Class E Certificate
EXHIBIT A-18 Form of Class F Certificate
EXHIBIT A-19 Form of Class G Certificate
EXHIBIT A-20 Form of Class H Certificate
EXHIBIT A-21 Form of Class J Certificate
EXHIBIT A-22 Form of Class K Certificate
EXHIBIT A-23 Form of Class L Certificate
EXHIBIT A-24 Form of Class M Certificate
EXHIBIT A-25 Form of Class N Certificate
EXHIBIT A-26 Form of Class O Certificate
EXHIBIT A-27 Form of Class P Certificate
EXHIBIT A-28 Form of Class Q Certificate
EXHIBIT A-29 Form of Class S Certificate
EXHIBIT A-30 Form of Class R-I Certificate
EXHIBIT A-31 Form of Class R-II Certificate
EXHIBIT B Form of Investment Representation Letter
EXHIBIT C-1 Form of Transfer Affidavit and Agreement Pursuant to Section
5.02(d)(i)(B)
EXHIBIT C-2 Form of Transferor Certificate Pursuant to Section
5.02(d)(i)(D)
EXHIBIT D Form of Request for Release
EXHIBIT E Form of ERISA Representation Letter
EXHIBIT F Form of Custodial Certification
EXHIBIT G Form of Trustee Distribution Date Statement
EXHIBIT H Form of Request for Review
EXHIBIT I Form of Notice Regarding Purchase Option Exercise
EXHIBIT J Form of Notice and Certification Regarding Defeasance of
Mortgage Loan
EXHIBIT K Form of Certification to be Provided with Form 10-K
EXHIBIT L Form of Certification to be Provided to Depositor
EXHIBIT M Form of Confidentiality Agreement
EXHIBIT N Form of Regulation S Certificate
EXHIBIT O Form of Transfer Certificate for Exchange or Transfer from
Domestic Global Certificate to Regulation S Global Certificate
During the Restricted Period
EXHIBIT P Form of Transfer Certificate for Exchange or Transfer from
Domestic Global Certificate to Regulation S Global Certificate
After the Restricted Period
EXHIBIT Q Form of Transfer Certificate for Exchange or Transfer from
Regulation S Global Certificate to Domestic Global Certificate
LIST OF SCHEDULES
SCHEDULE I Mortgage Loan Schedule
SCHEDULE II Sub-Servicing Agreements in Effect as of the Closing Date
SCHEDULE III Schedule of Exceptions under Section 2.02(a)
SCHEDULE IV [RESERVED]
SCHEDULE V Mortgage Loans that Initially Pay Interest Only
SCHEDULE VI Mortgage Loans Containing Additional Debt
SCHEDULE VII Schedule of Initial Controlling Holders
SCHEDULE VIII Servicing Criteria to be Addressed in Assessment of Compliance
SCHEDULE IX Additional Form 10-D Disclosure
SCHEDULE X Additional Form 10-K Disclosure
SCHEDULE XI Form 8-K Disclosure Information
SCHEDULE XII Form of Additional Disclosure Notification
This Pooling and Servicing Agreement (this "Agreement"), dated
and effective as of July 1, 2007, is by and among BANC OF AMERICA COMMERCIAL
MORTGAGE INC., as Depositor, BANK OF AMERICA, NATIONAL ASSOCIATION, as Master
Servicer, MIDLAND LOAN SERVICES, INC., as Special Servicer, and XXXXX FARGO
BANK, N.A., as Trustee and as REMIC Administrator.
PRELIMINARY STATEMENT:
The Depositor intends to sell Certificates, to be issued
hereunder in multiple Classes, which in the aggregate will evidence the entire
beneficial ownership interest in the Trust to be created hereunder.
As provided herein, the Trustee will elect that two segregated
pools of assets within the Trust Fund (exclusive of the Class A-2FL Regular
Interest, the Class A-2FL Swap Contract, the Class A-2FL Floating Rate Account,
the Class A-MFL Regular Interest, the Class A-MFL Swap Contract and the Class
A-MFL Floating Rate Account) be treated for federal income tax purposes as two
separate real estate mortgage investment conduits ("REMIC I" and "REMIC II",
respectively).
REMIC I
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the Mortgage Loans and certain other
related assets subject to this Agreement as a REMIC for federal income tax
purposes and such segregated asset pool will be designated as "REMIC I". The
REMIC I Regular Interests listed below under the heading "Corresponding REMIC I
Regular Interests" constitute "regular interests" in REMIC I and the Class R-I
Certificates constitute the sole Class of "residual interests" in REMIC I
created hereunder for purposes of the REMIC Provisions.
The following table sets forth the Class or Component
designation, the corresponding REMIC I Regular Interest (the "Corresponding
REMIC I Regular Interest"), and the Corresponding Components of the Class XW
Certificates for each Class of the REMIC II Regular Certificates (the
"Corresponding Certificates") (for the avoidance of doubt, in the case of the
Class A-2FL and Class A-MFL Certificates, "Corresponding Certificates" shall
mean the Class A-2FL Regular Interest and Class A-MFL Regular Interest,
respectively):
Corresponding Corresponding
REMIC I Regular REMIC I Components of Class
Corresponding Certificates Interests(1) Principal Balance XW Certificates(1)
---------------------------- --------------- ----------------- -------------------
Class X-0 XX-0 $ 50,000,000 XA-1
Class X-0 XX-0 $ 334,000,000 XA-2
Class A-2FL Regular Interest LA-2FL(2) $ 150,000,000 XA-2FL
Class X-0 XX-0 $ 133,000,000 XA-3
Class A-AB LA-AB $ 78,944,000 XA-AB
Class X-0 XX-0 x0,000,000,000 XX-0
Class X-0 XX-0 $ 50,000,000 XA-5
Class A-1A LA-1A $ 648,014,000 XA-1A
Class A-M LA-M $ 116,565,000 XA-M
Class A-MF LA-MF $ 100,000,000 XA-MF
Class A-MFL Regular Interest LA-MFL(3) $ 135,000,000 XA-MFL
Class A-J LA-J $ 241,701,000 XA-J
Class B LB $ 35,157,000 XB
Class C LC $ 48,340,000 XC
Class D LD $ 26,368,000 XD
Class E LE $ 26,367,000 XE
Class F LF $ 35,157,000 XF
Class G LG $ 30,762,000 XG
Class H LH $ 48,340,000 XH
Class J LJ $ 35,156,000 XJ
Class K LK $ 43,946,000 XK
Class L LL $ 26,367,000 XL
Class M LM $ 4,395,000 XM
Class N LN $ 17,578,000 XN
Class O LO $ 4,395,000 XO
Class P LP $ 8,789,000 XP
Class Q LQ $ 13,184,000 XQ
Class S LS $ 57,129,613 XS
--------
(1) The REMIC I Regular Interest and the Component of the Class XW Certificates
that correspond to any particular Class of REMIC II Regular Certificates or
the Class A-2FL Regular Interest or Class A-MFL Regular Interest also
correspond to each other and, accordingly, constitute the (i)
"Corresponding REMIC I Regular Interests" and (ii) "Corresponding
Components", respectively, with respect to each other.
(2) The Class LA-2FL Regular Interest and Component XA-2FL do not correspond to
any Class of REMIC II Certificates. The Class LA-2FL Regular Interest and
Component XA-2FL correspond to the Class A-2FL Regular Interest and to each
other.
(3) The Class LA-MFL Regular Interest and Component XA-MFL do not correspond to
any Class of REMIC II Certificates. The Class LA-MFL Regular Interest and
Component XA-MFL correspond to the Class A-MFL Regular Interest and to each
other.
REMIC II
As provided herein, the Trustee will elect to treat that portion
of the Trust Fund consisting of the REMIC I Regular Interests and certain other
assets subject to this Agreement as a REMIC for federal income tax purposes, and
such segregated asset pool will be designated as "REMIC II". The Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class A-3
Certificates, Class A-AB Certificates, Class A-4 Certificates, Class A-5
Certificates, Class A-1A Certificates, Class A-M Certificates, Class A-MF
Certificates, Class A-MFL Regular Interest, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M Certificates,
Class N Certificates, Class O Certificates, Class P Certificates, Class Q
Certificates and Class S Certificates will constitute "regular interests" in
REMIC II, and the Class R-II Certificates will constitute the sole Class of
"residual interests" in REMIC II for purposes of the REMIC Provisions.
The following table sets forth the designation, the approximate
initial Pass-Through Rate and the Initial Class Principal Balance for each of
the Classes of Regular Certificates and the Class A-2FL Regular Interest and
Class A-MFL Regular Interest:
Initial Class
Approximate Initial Principal
Designation Pass-Through Rate Balance
---------------------------- ------------------------------- -----------------
Regular Certificates and
the Class A-2FL Regular
Interest and Class A-MFL
Regular Interest:
Class A-1 5.6590% per annum(1) $ 50,000,000
Class A-2 5.8379% per annum(2) $ 334,000,000
Class A-2FL LIBOR plus 0.1700% per annum(5) $ 150,000,000
Class A-2FL Regular Interest 5.8379% per annum(2) $ 150,000,000
Class A-3 5.8379% per annum(2) $ 133,000,000
Class A-AB 5.8379% per annum(2) $ 78,944,000
Class A-4 5.8379% per annum(2) $1,017,000,000
Class A-5 5.3770% per annum $ 50,000,000
Class A-1A 5.8379% per annum(2) $ 648,014,000
Class A-M 5.8379% per annum(2) $ 116,565,000
Class A-MF 5.3170% per annum $ 100,000,000
Class A-MFL LIBOR plus 0.2800% per annum(5) $ 135,000,000
Class A-MFL Regular Interest 5.8379% per annum(2) $ 135,000,000
Class A-J 5.8379% per annum(2) $ 241,701,000
Class B 5.8379% per annum(2) $ 35,157,000
Class C 5.8379% per annum(2) $ 48,340,000
Class D 5.8379% per annum(2) $ 26,368,000
Class E 5.8379% per annum(2) $ 26,367,000
Class F 5.8379% per annum(2) $ 35,157,000
Class G 5.8379% per annum(2) $ 30,762,000
Class H 5.8379% per annum(2) $ 48,340,000
Class J 5.8379% per annum(2) $ 35,156,000
Class K 5.8379% per annum(2) $ 43,946,000
Class L 5.5010% per annum(1) $ 26,367,000
Class M 5.5010% per annum(1) $ 4,395,000
Class N 5.5010% per annum(1) $ 17,578,000
Class O 5.5010% per annum(1) $ 4,395,000
Class P 5.5010% per annum(1) $ 8,789,000
Class Q 5.5010% per annum(1) $ 13,184,000
Class S 5.5010% per annum(1) $ 57,129,613
Class XW 0.0365% per annum(3) $3,515,654,613(4)
--------
(1) Initial Pass-Through Rate. The Pass-Through Rate for the Class A-1
Certificates, Class L Certificates, Class M Certificates, Class N
Certificates, Class O Certificates, Class P Certificates and Class Q
Certificates for each Distribution Date will equal a fixed rate subject to a
cap at the Weighted Average Adjusted Net Mortgage Rate for such Distribution
Date.
(2) Initial Pass-Through Rate. The Pass-Through Rate for the Class A-2
Certificates, Class A-2FL Regular Interest, Class A-3 Certificates, Class
A-AB Certificates, Class A-4 Certificates, Class A-1A Certificates, Class
A-M Certificates, Class A-MFL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates and Class K Certificates for each
Distribution Date will equal the Weighted Average Adjusted Net Mortgage Rate
for such Distribution Date.
(3) The Pass-Through Rate for the Class XW Certificates will be calculated in
accordance with the definition of "Class XW Pass-Through Rate".
(4) The Class XW Certificates will not have Class Principal Balances, rather,
such Class of Certificates will accrue interest as provided herein on the
related Certificate Notional Amount.
(5) Initial Pass-Through Rate. The Pass-Through Rate applicable to the Class
A-2FL and Class A-MFL Certificates on each Distribution Date will be a per
annum rate equal to LIBOR plus 0.1700% and LIBOR plus 0.2800%, respectively.
In addition, under certain circumstances described in this Agreement, the
Pass-Through Rate applicable to the Class A-2FL and Class A-MFL Certificates
may convert to the Pass-Through Rate applicable to the Class A-2FL Regular
Interest and Class A-MFL Regular Interest, respectively. The Class A-2FL
Regular Interest and Class A-MFL Regular Interest will each accrue interest
at the Weighted Average Adjusted Net Mortgage Rate for such Distribution
Date. The initial LIBOR rate will be determined as of July 24, 2007, and
subsequent LIBOR rates will be determined two LIBOR Business Days before the
start of the related Interest Accrual Period.
The Class R-I and Class R-II Certificates will bear no
Pass-Through Rate and will have no initial Certificate Principal Balances or
notional amounts. Any Available Distribution Amount (i) remaining in the REMIC I
Distribution Account after the distribution of all amounts distributable in
respect of the REMIC I Regular Interests and (ii) remaining in the REMIC II
Distribution Account after distributions to the Holders of the Regular
Certificates (and, in the case of the Class A-2FL and Class A-MFL Certificates,
in respect of the Class A-2FL Regular Interest and Class A-MFL Regular Interest,
respectively) shall be distributed to the Holders of the Class R-I and Class
R-II Certificates, respectively.
The segregated pool of assets consisting of the Class A-2FL
Regular Interest, the Class A-2FL Swap Contract and the Class A-2FL Floating
Rate Account and the proceeds thereof, will be treated as a grantor trust (the
"Class A-2FL Grantor Trust") for federal income tax purposes. The Class A-2FL
Certificates will represent undivided beneficial interests in the Class A-2FL
Grantor Trust.
The segregated pool of assets consisting of the Class A-MFL
Regular Interest, the Class A-MFL Swap Contract and the Class A-MFL Floating
Rate Account and the proceeds thereof, will be treated as a grantor trust (the
"Class A-MFL Grantor Trust") for federal income tax purposes. The Class A-MFL
Certificates will represent undivided beneficial interests in the Class A-MFL
Grantor Trust.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator agree as follows:
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE
MORTGAGE POOL AND THE CERTIFICATES
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"10-K Filing Deadline": As defined in Section 11.05(a).
"30/360 Basis": The accrual of interest calculated on the basis
of a 360-day year consisting of twelve 30-day months.
"A/B Whole Loan": Either of the Metropolis Shopping Center A/B
Whole Loan or the Pacifica Tower A/B Whole Loan, as applicable.
"A/B Whole Loan Purchase Option": Either of the Metropolis
Shopping Center A/B Whole Loan Purchase Option or the Pacifica Tower A/B Whole
Loan Purchase Option, as applicable.
"A/B Whole Loan Purchase Option Holder": Either of the Metropolis
Shopping Center A/B Whole Loan Purchase Option Holder or the Pacifica Tower A/B
Whole Loan Purchase Option Holder, as applicable.
"A/B Whole Loan Remittance Amount": With respect to any Master
Servicer Remittance Date and any A/B Whole Loan, an amount equal to (a) all
amounts on deposit in the related Serviced Whole Loan Custodial Account as of
the commencement of business on such Master Servicer Remittance Date, net of (b)
any portion of the amounts described in clause (a) of this definition that
represents one or more of the following: (i) collected Monthly Payments that are
due on a Due Date following the end of the related Collection Period, (ii) any
unscheduled payments of principal (including, without limitation, Principal
Prepayments, and interest, Liquidation Proceeds and Insurance Proceeds received
after the end of the related Collection Period), (iii) any Prepayment Premiums
received after the end of the related Collection Period, (iv) any amounts
payable or reimbursable to any Person from the related Serviced Whole Loan
Custodial Account pursuant to any of clauses (ii) through (xvii) of Section
3.05(f), (v) any Excess Liquidation Proceeds that are unrelated to such A/B
Whole Loan, and (vi) any amounts deposited into the related Serviced Whole Loan
Custodial Account in error, provided that, with respect to the Master Servicer
Remittance Date that occurs in the same calendar month as the Final Distribution
Date, the A/B Whole Loan Remittance Amount will be calculated without regard to
clauses (b)(i), (b)(ii) and (b)(iii) of this definition.
"A/B Whole Loan REO Account": As defined in Section 3.16(b).
"Accrued Certificate Interest": With respect to any Class of
REMIC II Regular Certificates and the Class A-2FL Regular Interest and Class
A-MFL Regular Interest, for any Distribution Date, one month's interest at the
Pass-Through Rate applicable to such Class of Certificates or the Class A-2FL
Regular Interest or Class A-MFL Regular Interest for such Distribution Date,
accrued on the related Class Principal Balance of such Class of Certificates or
the Class A-2FL Regular Interest or Class A-MFL Regular Interest outstanding
immediately prior to such Distribution Date and, with respect to the Class XW
Certificates for any Distribution Date, the sum of the Accrued Component
Interest for the related Interest Accrual Period for all of their respective
Components for such Distribution Date. For the avoidance of doubt, the Accrued
Certificate Interest in respect of any Class of REMIC II Regular Certificates or
the Class A-2FL Regular Interest or Class A-MFL Regular Interest for any
Distribution Date shall be deemed to have accrued during the applicable Interest
Accrual Period. Except with respect to the Class A-2FL and Class A-MFL
Certificates, Accrued Certificate Interest shall be calculated on the basis of a
360-day year consisting of twelve 30-day months. Accrued Certificate Interest
with respect to the Class A-2FL and Class A-MFL Certificates shall be calculated
on an Actual/360 Basis; provided, however, if a Class A-2FL Distribution
Conversion or Class A-2FL Distribution Conversion has occurred, Accrued
Certificate Interest with respect to the Class A-2FL or Class A-MFL
Certificates, as applicable, shall be the same as for the Class A-2FL Regular
Interest or Class A-MFL Regular Interest, as applicable.
"Accrued Component Interest": With respect to each Component of
the Class XW Certificates for any Distribution Date, one month's interest at the
Class XW Strip Rate applicable to such Component for such Distribution Date,
accrued on the Component Notional Amount of such Component outstanding
immediately prior to such Distribution Date. Accrued Component Interest shall be
calculated as described in the definitions of Class XW Strip Rate with respect
to any applicable Component and any Distribution Date, and shall be deemed to
accrue during the calendar month preceding the month in which such Distribution
Date occurs.
"Actual/360 Basis": The accrual of interest calculated on the
basis of the actual number of days elapsed during any calendar month (or other
applicable recurring accrual period) in a year assumed to consist of 360 days.
"Additional Collateral": Any non-real property collateral pledged
and/or delivered by or on behalf of the related Mortgagor and held by the
related Mortgagee to secure payment on any Loan.
"Additional Disclosure Notification": The form of notification to
be included with any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or Additional Form 8-K Disclosure, which is attached hereto as
Schedule XII.
"Additional Exclusions": Exclusions relating to terrorist or
similar acts in addition to those customarily found in insurance policies for
Mortgaged Properties prior to September 11, 2001.
"Additional Form 8-K Disclosure": As defined in Section 11.07.
"Additional Form 10-D Disclosure": As defined in Section 11.04.
"Additional Form 10-K Disclosure": As defined in Section 11.05.
"Additional Master Servicing Compensation": As defined in Section
3.11(b).
"Additional Servicer": Each Affiliate of the Master Servicer that
services any of the Mortgage Loans and each Person who is not an Affiliate of
the Master Servicer, other than the Special Servicer and the Trustee, who
Services 10% or more of the Mortgage Loans.
"Additional Special Servicing Compensation": As defined in
Section 3.11(d).
"Additional Trust Fund Expense": Any expense incurred or
shortfall experienced with respect to the Trust Fund and not otherwise included
in the calculation of a Realized Loss, that would result in the Holders of the
REMIC II Regular Certificates, the Class A-2FL Regular Interest and/or the Class
A-MFL Regular Interest, as applicable, receiving less than the full amount of
principal and/or interest to which they are entitled on any Distribution Date.
"Adjusted Net Mortgage Rate": With respect to any Loan or REO
Loan, for any Distribution Date, the annualized rate at which interest would
have to accrue thereon on a 30/360 Basis during the most recently ended calendar
month to produce the actual amount of interest accrued (or, if such Loan or REO
Loan, as the case may be, is prepaid, in whole or in part, or otherwise
liquidated during such calendar month, that otherwise would have accrued) in
respect of such Loan or REO Loan, as the case may be, at the related Net
Mortgage Rate in effect for such Loan or REO Loan during such calendar month.
Such rate shall be calculated by multiplying (i) the Net Mortgage Rate by (ii)
the actual number of days of accrued interest for the related period for such
Loan or REO Loan, divided by 30; provided, however, with respect to such Loan or
REO Loan, the Adjusted Net Mortgage Rate for the one-month period (a) prior to
the Due Dates in January and February in any year that is not a leap year or in
February in any year that is a leap year (unless, in either case, the related
Distribution Date is the final Distribution Date) shall be the per annum rate
stated in the related Mortgage Note as of the Closing Date less the related
Administrative Fee Rate and (b) prior to the Due Date in March (or February, if
the related Distribution Date is the final Distribution Date) shall be
determined inclusive of one day of interest retained for each of the one-month
periods prior to the Due Dates in January and February in any year that is not a
leap year or February in any year that is a leap year.
"Administrative Fee Rate": With respect to each Mortgage Loan and
REO Loan, as specified in the Mortgage Loan Schedule, being the sum of the
related Master Servicing Fee Rate (and, in the case of a Non-Serviced Mortgage
Loan, the related Non-Serviced Mortgage Loan Primary Servicing Fee Rate) and the
Trustee Fee Rate.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": Interest accrued on any Advance at the
Reimbursement Rate and payable to the Master Servicer (or any Sub-Servicer), the
Special Servicer or the Trustee, as the case may be, all in accordance with
Section 3.11(g) or Section 4.03(d), as applicable.
"Adverse Grantor Trust Event": Either: (i) any impairment of the
status of any Grantor Trust as a "grantor trust" under subpart E, Part I of
subchapter J of the Code; or (ii) the imposition of a tax upon any Grantor Trust
or any of its assets or transactions.
"Adverse Rating Event": With respect to any Class of Rated
Certificates or Companion Loan Securities and each Rating Agency that has
assigned a rating thereto, as of any date of determination, the qualification,
downgrade or withdrawal of the rating then assigned to such Class of Rated
Certificates or Companion Loan Securities by such Rating Agency (or the placing
of such Class of Rated Certificates or Companion Loan Securities on "negative
credit watch" status in contemplation of any such action with respect thereto).
"Adverse REMIC Event": With respect to each of REMIC I and REMIC
II, either (i) the endangerment of the status of such REMIC as a REMIC or (ii),
except as permitted by Section 3.16(a), the imposition of a tax upon such REMIC
or any of its assets or transactions (including, without limitation, the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax
on certain contributions set forth in Section 860G(d) of the Code).
"Affiliate": With respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have the meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement, together with
all amendments hereof and supplements hereto.
"Anticipated Repayment Date": With respect to any ARD Loan, the
date specified on the related Mortgage Note, as of which Excess Interest shall
begin to accrue on such Loan, which date is prior to the Stated Maturity Date
for such Loan.
"Applicable State Law": For purposes of Article X, the Applicable
State Law shall be (a) the laws of any state in which the Corporate Trust Office
of the Trustee is located, (b) the laws of the states in which any loan
documents are held and/or any REO Properties are located, (c) such other state
and local law whose applicability shall have been brought to the attention of
the REMIC Administrator by either (i) an Opinion of Counsel delivered to it or
(ii) written notice from the appropriate taxing authority as to the
applicability of such state law, and (d) such other state or local law as to
which the REMIC Administrator has actual knowledge of applicability.
"Appraisal": With respect to any Mortgaged Property or REO
Property as to which an appraisal is required to be performed pursuant to the
terms of this Agreement, a narrative appraisal complying with Title XI of FIRREA
(or, in the case of a Loan or REO Loan with a Stated Principal Balance as of the
date of such appraisal of $2,000,000 or less, at the Special Servicer's option,
either a limited appraisal and a summary report or an internal valuation
prepared by the Special Servicer) that indicates the "market value" of the
subject property, as defined in 12 C.F.R. ss.225.62(g), and is conducted by a
Qualified Appraiser (or by the Special Servicer in the case of a limited
appraisal and summary report or internal valuation with respect to a Loan or a
REO Loan with a Stated Principal Balance as of the date of such appraisal or
valuation of $2,000,000 or less).
"Appraisal Reduction Amount": With respect to any Required
Appraisal Serviced Loan, an amount (calculated as of the Determination Date by
the Special Servicer immediately following the later of the date on which the
most recent relevant Appraisal acceptable for purposes of Section 3.19(b) was
obtained by the Special Servicer pursuant to this Agreement and the date of the
most recent Appraisal Trigger Event with respect to such Required Appraisal
Serviced Loan) equal to the excess, if any, of:
(1) the sum of (a) the Stated Principal Balance of such Required Appraisal
Serviced Loan as of such Determination Date, (b) to the extent not previously
advanced by or on behalf of the Master Servicer, or the Trustee, all unpaid
interest (net of Default Interest) accrued on such Required Appraisal Serviced
Loan through the most recent Due Date prior to such Determination Date, (c) all
unpaid Master Servicing Fees, Special Servicing Fees, Trustee Fees and
Additional Trust Fund Expenses accrued with respect to such Required Appraisal
Serviced Loan, (d) all related unreimbursed Advances made by or on behalf of the
Master Servicer, the Special Servicer or the Trustee with respect to such
Required Appraisal Serviced Loan and reimbursable out of the Trust Fund and all
Advances related to such Required Appraisal Serviced Loan that were not
reimbursed out of collections on such Required Appraisal Serviced Loan, together
with all unpaid Advance Interest accrued on such Advances, and (e) all currently
due but unpaid real estate taxes and assessments, insurance premiums and, if
applicable, ground rents in respect of the related Mortgaged Property or REO
Property, as applicable, for which neither the Master Servicer nor the Special
Servicer holds any Escrow Payments or Reserve Funds; over
(2) the sum of (x) the excess, if any, of (i) 90% of the Appraised Value of the
related Mortgaged Property or REO Property (subject to such downward adjustments
as the Special Servicer may deem appropriate in accordance with the Servicing
Standard (without implying any obligation to do so) based upon its review of the
related Appraisal and such other information as the Special Servicer deems
appropriate), as applicable, as determined by the most recent relevant Appraisal
acceptable for purposes of Section 3.19(b), over (ii) the amount of any
obligation(s) secured by any liens on such Mortgaged Property or REO Property,
as applicable, that are prior to the lien of such Required Appraisal Serviced
Loan, and (y) any Escrow Payments, Reserve Funds and/or Letters of Credit held
by the Master Servicer or the Special Servicer with respect to such Required
Appraisal Serviced Loan, the related Mortgaged Property or any related REO
Property (exclusive of any such items that are to be applied to real estate
taxes, assessments, insurance premiums and/or ground rents or that were taken
into account in determining the Appraised Value of the related Mortgaged
Property or REO Property, as applicable, referred to in clause (2)(x)(i) of this
definition).
Notwithstanding the foregoing, if (i) an Appraisal Trigger Event
occurs with respect to any Serviced Loan, (ii) either (A) no Appraisal has been
obtained or conducted, as applicable in accordance with Section 3.19(b), with
respect to the related Mortgaged Property during the 12 month period prior to
the date of such Appraisal Trigger Event or (B) there shall have occurred since
the date of the most recent Appraisal a material change in the circumstances
surrounding the related Mortgaged Property that would, in the Special Servicer's
judgment, materially affect the value of the property, and (iii) no new
Appraisal is obtained or conducted, as applicable in accordance with Section
3.19(b), within 60 days after such Appraisal Trigger Event, then (x) until such
new Appraisal is obtained or conducted, as applicable in accordance with Section
3.19(b), the Appraisal Reduction Amount shall equal 25% of the Stated Principal
Balance of such Required Appraisal Serviced Loan, and (y) upon receipt or
performance, as applicable in accordance with Section 3.19(b), of such new
Appraisal by the Special Servicer, the Appraisal Reduction Amount for such
Required Appraisal Serviced Loan will be recalculated in accordance with the
preceding sentence of this definition.
Also notwithstanding the foregoing, if and when any
Cross-Collateralized Mortgage Loan becomes a Required Appraisal Serviced Loan,
an Appraisal Reduction Amount shall be calculated for the entire
Cross-Collateralized Set to which that particular Cross-Collateralized Mortgage
Loan belongs as if such Cross-Collateralized Set was a single mortgage loan
secured by multiple properties, and any resulting Appraisal Reduction Amount for
such Cross-Collateralized Set shall be allocated among the respective
Cross-Collateralized Mortgage Loans forming that set on a pro rata basis in
accordance with the respective Stated Principal Balances of those Serviced
Loans.
In addition, notwithstanding the foregoing and for the avoidance
of doubt, for purposes of calculating Appraisal Reduction Amounts for
determining change of control with respect to any Whole Loan, references to the
Stated Principal Balance will be to the entire Stated Principal Balance thereof
(i.e., the aggregate Stated Principal Balances of the related Mortgage Loan and,
in the case of a Serviced Whole Loan, the related Companion Loan).
Each Serviced Whole Loan will be treated as a single Mortgage
Loan for purposes of calculating an Appraisal Reduction Amount with respect to
the Mortgage Loans that comprise that Serviced Whole Loan. For the avoidance of
doubt, any Appraisal Reduction Amount with respect to (i) any Pari Passu Whole
Loan shall be allocated pro rata between the Mortgage Loan and the related
Companion Loan and (ii) any A/B Whole Loan shall be calculated based upon the
aggregate stated principal balances of the related Mortgage Loan and the related
Companion Loan and shall be deemed allocated first, to the related Companion
Loan to the extent of its outstanding principal balance and then to the related
Mortgage Loan.
For the avoidance of doubt and for purposes of calculating
Appraisal Reduction Amounts in connection with any P&I Advance required to be
made under this Agreement for a Mortgage Loan constituting a part of an A/B
Whole Loan, such calculation shall be made based upon and allocated solely to
the Stated Principal Balance of the Mortgage Loan contained in such A/B Whole
Loan and shall exclude the Stated Principal Balance of the related Note B.
The Appraisal Reduction Amount applicable to either the
ChampionsGate Hotel Pari Passu Mortgage Loan (which is governed by the
ChampionsGate Hotel Pooling Agreement) or One Park Avenue Pari Passu Mortgage
Loan (which is governed by the One Park Avenue Pooling Agreement ) shall be
calculated by the applicable Non-Serviced Loan Master Servicer or Non-Serviced
Loan Special Servicer under the related Non-Serviced Loan Pooling Agreement.
"Appraisal Trigger Event": With respect to any Serviced Loan, any
of the following events:
(i) such Serviced Loan becomes a Modified Serviced Loan;
(ii) any Monthly Payment with respect to such Loan remains
unpaid for 60 days past the Due Date for such payment (or for
such shorter period at the end of which such delinquency will
become a Servicing Transfer Event); provided, however, solely in
the case of a delinquent Balloon Payment and if (x) the related
Borrower is actively seeking a refinancing commitment, (y) the
related Borrower continues to make payments in the amount of its
Monthly Payment, and (z) subject to Section 3.21(f), the
Directing Certificateholder consents, failure to pay such Balloon
Payment during such 60-day period shall not constitute an
Appraisal Trigger Event if the related Mortgagor has delivered to
the Master Servicer, on or before the 60th day after the Due Date
of such Balloon Payment, a refinancing commitment reasonably
acceptable to the Master Servicer, for such longer period, not to
exceed 120 days beyond such Due Date, during which the
refinancing would occur;
(iii) the passage of 60 days after the Special Servicer
receives notice that the Mortgagor under such Serviced Loan
becomes the subject of bankruptcy, insolvency or similar
proceedings that remain undischarged and undismissed;
(iv) the passage of 60 days after the Special Servicer
receives notice that a receiver or similar official is appointed
with respect to the related Mortgaged Property;
(v) the related Mortgaged Property becomes a REO Property;
or
(vi) if a Serviced Loan has been extended three times,
upon the sixtieth day after the third extension.
"Appraised Value": With respect to any Mortgaged Property (other
than any Mortgaged Property related to a Non-Serviced Loan) and as of any date
of determination, the appraised value of a Mortgaged Property or REO Property
based upon the most recent Appraisal obtained or conducted, as appropriate,
pursuant to this Agreement. With respect to any Mortgaged Property related to a
Non-Serviced Loan, the appraised value shall be determined pursuant to the
related Non-Serviced Loan Pooling Agreement.
"Approval Provisions": With respect to any Serviced Loan and the
provisions set forth in Section 3.21(e), the approvals and consents and the time
frames for such approvals and consents necessary in connection with the taking
of a Special Action or the extension of the maturity date of a Serviced Loan set
forth below (in each case subject to the limitations set forth in Section
3.21(e) and Section 3.21(f):
(i) with respect to any Performing Serviced Loan, the
Master Servicer shall obtain the approval or consent of the
Special Servicer in connection with a Special Action;
(ii) (A) with respect to any Non-Partitioned Loan or Post
CAP A/B Whole Loan that is a Performing Serviced Loan that
involves an extension of the maturity date of such Loan or (B) in
connection with a Special Action for any Non-Partitioned Loan or
Post CAP A/B Whole Loan that is a Performing Serviced Loan, the
Master Servicer shall obtain the approval and consent of the
Special Servicer and the Special Servicer shall obtain the
approval and consent of the Directing Certificateholder;
(iii) with respect to any Non-Partitioned Loan or Post CAP
A/B Whole Loan that is a Specially Serviced Loan, the Special
Servicer shall obtain the approval and consent of the Directing
Certificateholder in connection with a Special Action;
(iv) with respect to any A/B Whole Loan, during any time
period that a related Control Appraisal Period does not exist,
the Master Servicer, if such A/B Whole Loan is a then Performing
Serviced Loan, shall seek the approval and consent of the Special
Servicer, and the Special Servicer shall then obtain the approval
and consent of the related Controlling Holder in connection with
a Special Action; and
(v) with respect to any A/B Whole Loan, during any time
period that a related Control Appraisal Period does not exist,
the Special Servicer, if such A/B Whole Loan is a then Specially
Serviced Loan, shall obtain the approval and consent of the
related Controlling Holder in connection with a Special Action.
With respect to any extension or Special Action set forth in
clauses (i), (ii) and (iv) of this definition, the Special Servicer shall
respond to the Master Servicer in writing (which may be via e-mail or facsimile)
of its decision to grant or deny the Master Servicer's request for approval and
consent within ten Business Days of its receipt of such request (except as
provided in Section 3.08) and all information reasonably requested by the
Special Servicer, as such time frame may be extended if the Special Servicer is
required to seek the consent of the Directing Certificateholder, any Controlling
Holder or any Rating Agency. If the Special Servicer so fails to respond to the
Master Servicer within the time period referenced in the immediately preceding
sentence, such approval and consent shall be deemed granted. With respect to any
Special Action described in clauses (ii) and (iii) of this definition, the
Directing Certificateholder shall respond to the Special Servicer within ten
Business Days of its receipt of such request in writing (which may be via e-mail
or facsimile) and such request will be deemed granted if the Directing
Certificateholder does not respond in such time frame. With respect to any
Special Action described in clauses (iv) and (v) of this definition, the related
Controlling Holder shall respond in writing (which may be via e-mail or
facsimile) to the Special Servicer within ten Business Days of its receipt of a
request for its approval and consent, and such request will be deemed granted if
the required party does not respond in such time frame.
"ARD Loan": Any Mortgage Loan that provides for changes in
payments and accrual of interest, including the capture of Excess Interest from
the related mortgaged property and an increase in the applicable Mortgage Rate,
if it is not paid in full by the Anticipated Repayment Date. Each Mortgage Loan
that is an ARD Loan is identified on the Mortgage Schedule as such pursuant to
clause (xv) under the definition of Mortgage Loan Schedule.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged Property,
any assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor in connection with the related Loan, as amended,
modified, renewed or extended through the date hereof and from time to time
hereafter.
"Assumed Monthly Payment": With respect to any Balloon Loan for
its Stated Maturity Date (provided that such Loan has not been paid in full, and
no other Liquidation Event has occurred in respect thereof, on or before the end
of the Collection Period in which such Stated Maturity Date occurs) and for any
subsequent Due Date on which such Serviced Loan remains outstanding and part of
the Trust Fund, if no Monthly Payment (other than a delinquent Balloon Payment)
is due for such Due Date, the scheduled monthly payment of principal and/or
interest deemed to be due in respect thereof on such Due Date equal to the
amount that would have been due in respect of such Serviced Loan on such Due
Date if it had been required to continue to accrue interest in accordance with
its terms, and to pay principal in accordance with the amortization schedule (if
any), in effect immediately prior to, and without regard to the occurrence of,
its most recent scheduled maturity date (as such terms and amortization schedule
may have been modified, and such maturity date may have been extended, in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Serviced Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
3.20). With respect to any REO Loan, for any Due Date therefor as of which the
related REO Property remains part of the Trust Fund, the scheduled monthly
payment of principal and/or interest deemed to be due in respect thereof on such
Due Date equal to the Monthly Payment that was due (or, in the case of a Balloon
Loan described in the preceding sentence of this definition, the Assumed Monthly
Payment that was deemed due) in respect of the related Serviced Loan on the last
Due Date prior to its becoming a REO Loan.
"Available Distribution Amount": With respect to any Distribution
Date and each Mortgage Loan and, in the case of a Non-Serviced Whole Loan (other
than with respect to a P&I Advance required to be made by the Trustee) only to
the extent received by the Trustee pursuant to the related Intercreditor
Agreement, an amount equal to (a) the balance on deposit in the Certificate
Account and the Distribution Account as of the close of business on the related
Determination Date, including, without limitation, if and to the extent on
deposit therein as of such time, the Master Servicer Remittance Amount for the
related Master Servicer Remittance Date, any P&I Advances made by the Master
Servicer or the Trustee to cover uncollected Monthly Payments due and/or Assumed
Monthly Payments deemed due during the related Collection Period, any amounts
received from the ChampionsGate Hotel Master Servicer in respect of the
ChampionsGate Hotel Pari Passu Mortgage Loan pursuant to the ChampionsGate Hotel
Pooling Agreement and/or the ChampionsGate Hotel Intercreditor Agreement, any
amounts received from the One Park Avenue Master Servicer in respect of the One
Park Avenue Pari Passu Mortgage Loan pursuant to the One Park Avenue Pooling
Agreement and/or the One Park Avenue Intercreditor Agreement, any Compensating
Interest Payments made by the Master Servicer to cover Prepayment Interest
Shortfalls incurred during the related Collection Period, the portion of Loss of
Value Payments deposited into the Certificate Account pursuant to Section
3.05(g) and for the Distribution Date occurring in each March (or February, if
the related Distribution Date is the final Distribution Date), the related
Withheld Amounts remitted to the REMIC I Distribution Account pursuant to
Section 4.05, net of (b) any portion of the amounts described in clause (a) of
this definition that represents one or more of the following (i) collected
Monthly Payments that are due on a Due Date following the end of the related
Collection Period, (ii) any payments of principal (including, without
limitation, Principal Prepayments) and interest, Liquidation Proceeds and
Insurance Proceeds received after the end of the related Collection Period,
(iii) Prepayment Premiums, (iv) any amounts payable or reimbursable to any
Person from the REMIC I Distribution Account pursuant to any of clauses (ii)
through (vi) of Section 3.05(b), (v) any amounts deposited into the REMIC I
Distribution Account in error, (vi) all funds released from the Excess
Liquidation Proceeds Account with respect to such Distribution Date, (vii) any
amounts payable or reimbursable to any Person from the Certificate Account
pursuant to clauses (ii) through (xvii) of Section 3.05(a), and (viii) with
respect to each Mortgage Loan that accrues interest on an Actual/360 Basis and
any Distribution Date relating to the one-month period preceding the
Distribution Date in each February (and in any January of a year that is not a
leap year) (unless, in either case, the related Distribution Date is the final
Distribution Date), an amount equal to the related Withheld Amount pursuant to
Section 4.05; provided that the Available Distribution Amount for the Final
Distribution Date shall be calculated without regard to clauses (b)(i), (b)(ii)
and (b)(iii) of this definition.
"BACM": Banc of America Commercial Mortgage Inc., or its
successors in interest.
"Balloon Loan": Any Loan that by its original terms or by virtue
of any modification entered into as of the Closing Date (or, in the case of a
Replacement Mortgage Loan, as of the related date of substitution) provides for
an amortization schedule extending beyond its Stated Maturity Date and as to
which, in accordance with such terms, the Monthly Payment due on its Stated
Maturity Date is at least two times larger than the Monthly Payment due on the
Due Date next preceding its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Loan as of any
date of determination, the Monthly Payment payable on the Stated Maturity Date
of such Loan.
"Balloon Payment Interest Shortfall": With respect to any Balloon
Loan that is included as part of the Trust Fund, with a Stated Maturity Date
that occurs after, or that provides for a grace period for its Balloon Payment
that runs past, the Determination Date in any calendar month, and as to which
the Balloon Payment is actually received after the Determination Date in such
calendar month (but no later than its Stated Maturity Date or, if there is an
applicable grace period, beyond the end of such grace period), the amount of
interest, to the extent not collected from the related Determination Date, that
would have accrued on the principal portion of such Balloon Payment during the
period from the related Stated Maturity Date to, but not including, the first
day of the calendar month following the month of maturity (less the amount of
related Master Servicing Fees that would have been payable from that uncollected
interest and, if applicable, exclusive of any portion of that uncollected
interest that would have been Default Interest).
"Bank": As defined in Section 2.07.
"Bank of America": Bank of America, National Association, or its
successors in interest.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from
time to time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal
Prepayment on any Mortgage Loan, and with respect to any Class of Sequential Pay
Certificates or the Class A-2FL Regular Interest or Class A-MFL Regular
Interest, is a fraction: (a) whose numerator is the amount, if any, by which (i)
the Pass-Through Rate on such Class of Certificates or the Class A-2FL Regular
Interest or Class A-MFL Regular Interest exceeds (ii) the Discount Rate and (b)
whose denominator is the amount, if any, by which (i) the Mortgage Rate on such
Mortgage Loan exceeds (ii) the Discount Rate. However, under no circumstances
shall the Base Interest Fraction be greater than one. If such Discount Rate is
greater than or equal to the lesser of: (x) the Mortgage Rate on such Mortgage
Loan and (y) the Pass-Through Rate described in the preceding sentence, then the
Base Interest Fraction will equal zero.
"Base Prospectus": That certain prospectus dated July 18, 2007,
relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Book-Entry Certificate": Any Certificate registered in the name
of the Depository or its nominee.
"Borrower": Individually and collectively, as the context may
require, the obligor or obligors under a Loan, including any Person that has not
signed the related Mortgage Note but owns an interest in the related Mortgaged
Property, which interest has been encumbered to secure such Loan.
"Breach": With respect to any Mortgage Loan, any breach of
representation or warranty made by the related Mortgage Loan Seller pursuant to
Section 4(b) of the related Mortgage Loan Purchase and Sale Agreement.
"Business Day": Any day other than a Saturday, a Sunday or a day
on which banking institutions in Minnesota, Pennsylvania, New York, any city in
which the office of the Certificate Registrar is located or any city in which
the Corporate Trust Office of the Trustee or principal place of business of the
Master Servicer or Special Servicer is located are authorized or obligated by
law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2007-3 as executed by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Account": The segregated account or accounts created
and maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of
the Trustee in trust for Certificateholders, which shall be entitled "Bank of
America, National Association, as Master Servicer, in trust for the registered
holders of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-3, Certificate Account".
"Certificate Factor": With respect to any Class of Regular
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to at least eight places, the numerator of which is the then
related Class Principal Balance or Class Notional Amount, as the case may be,
and the denominator of which is the related Initial Class Principal Balance or
Initial Class Notional Amount, as the case may be.
"Certificate Notional Amount": With respect to a Class XW
Certificate, as of any date of determination, the then notional amount of such
Certificate equal to the product of (a) the Percentage Interest evidenced by
such Certificate, multiplied by (b) the then Class Notional Amount of the Class
XW Certificates.
"Certificate Owner": With respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Certificate as reflected on the
books of the Depository or on the books of a Depository Participant or on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent.
"Certificate Principal Balance": With respect to any Sequential
Pay Certificate and the Class A-2FL and Class A-MFL Certificates, as of any date
of determination, the then outstanding principal amount of such Certificate
equal to the product of (a) the Percentage Interest evidenced by such
Certificate, multiplied by (b) the then Class Principal Balance of the Class of
Certificates to which such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided that solely for
the purposes of giving any consent, approval or waiver pursuant to this
Agreement, any Certificate registered in the name of the Depositor, any Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the REMIC Administrator
or the Trustee or any Affiliate of any of them shall be deemed not to be
outstanding, and the Voting Rights to which any of them is entitled shall not be
taken into account in determining whether the requisite percentage of Voting
Rights necessary to effect any such consent, approval or waiver has been
obtained, except as otherwise provided in Sections 7.04 and 12.01(b) or except
in connection with the Controlling Class exercising its rights under Section
3.23, or unless such Persons collectively own an entire Class of Certificates
and only the Holders of such Class of Certificates are entitled to grant such
consent, approval or waiver. The Certificate Registrar shall be entitled to
request and rely upon a certificate of the Depositor, the Master Servicer, the
Special Servicer or, if other than the Trustee, the REMIC Administrator, as the
case may be, in determining whether or not a Certificate is registered in the
name of an Affiliate of such Person. All references herein to "Holders" or
"Certificateholders" shall reflect the rights of Certificate Owners as they may
indirectly exercise such rights through the Depository and the Depository
Participants, except as otherwise specified herein; provided, however, the
parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Certification Parties": As defined in Section 11.06.
"Certifying Person": As defined in Section 11.06.
"Certifying Servicer" means the Master Servicer, the Special
Servicer, the Trustee or an Additional Servicer, as the case may be.
"ChampionsGate Hotel Indemnified Parties": As defined in Section
6.03(b).
"ChampionsGate Hotel Intercreditor Agreement": The A Notes
Intercreditor Agreement dated as of July 5, 2007 by and between the
ChampionsGate Hotel Note A-1 Holder and the ChampionsGate Hotel Note A-2 Holder
relating to the relative rights of such holders, as the same may be further
amended from time to time in accordance with the terms thereof.
"ChampionsGate Hotel Master Servicer": The master servicer under
the ChampionsGate Hotel Pooling Agreement, which as of the Closing Date is
Wachovia Bank, National Association.
"ChampionsGate Hotel Nonrecoverable Servicing Advance": With
respect to the ChampionsGate Hotel Pari Passu Mortgage Loan, a "Nonrecoverable
Servicing Advance" as defined in the ChampionsGate Hotel Pooling Agreement.
"ChampionsGate Hotel Note A-1": With respect to the ChampionsGate
Hotel Pari Passu Mortgage Loan, the related Mortgage Note that is not included
in the Trust Fund and which is pari passu in right of payment to the
ChampionsGate Hotel Note A-2 as set forth in the ChampionsGate Hotel
Intercreditor Agreement.
"ChampionsGate Hotel Note A-1 Holder": The holder of the
ChampionsGate Hotel Note A-1, which as of the date hereof is the X.X. Xxxxxx
Xxxxx Commercial Mortgage Securities Trust 0000-XXX00.
"XxxxxxxxxXxxx Hotel Note A-2": The Mortgage Note related to
ChampionsGate Hotel Pari Passu Whole Loan that is included in the Trust, which
is pari passu in right of payment to the ChampionsGate Hotel Note A-1 as set
forth in the ChampionsGate Hotel Intercreditor Agreement.
"ChampionsGate Hotel Note A-2 Holder": The holder of the
ChampionsGate Hotel Note A-2, initially Eurohypo AG, New York Branch.
"ChampionsGate Hotel Noteholders": The ChampionsGate Hotel Note
A-1 Holder and ChampionsGate Hotel Note A-2 Holder.
"ChampionsGate Hotel Pari Passu Companion Loan": The loan
evidenced by the ChampionsGate Hotel Note A-1.
"ChampionsGate Hotel Pari Passu Companion Loan Holder": The holder of
the ChampionsGate Hotel Pari Passu Companion Loan.
"ChampionsGate Hotel Pari Passu Mortgage Loan": The Mortgage Loan
identified as Loan No. 400 in the Mortgage Loan Schedule, which, together with
the ChampionsGate Hotel Note A-1, is secured by a Mortgage on the related
Mortgaged Property.
"ChampionsGate Hotel Pari Passu Whole Loan": The ChampionsGate
Hotel Pari Passu Mortgage Loan together with the ChampionsGate Hotel Pari Passu
Companion Loan. References herein to ChampionsGate Hotel Pari Passu Whole Loan
shall be construed to refer to the aggregate indebtedness under the
ChampionsGate Hotel Note A-1 and the ChampionsGate Hotel Note A-2.
"ChampionsGate Hotel Pooling Agreement": That certain pooling and
servicing agreement dated as of July 1, 2007 among X.X. Xxxxxx Chase Commercial
Mortgage Securities, Inc., as depositor, the ChampionsGate Hotel Master
Servicer, as master servicer, the ChampionsGate Hotel Special Servicer, as
special servicer, and the ChampionsGate Hotel Trustee, as trustee and REMIC
administrator, which agreement relates to the X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Trust 2007-LDP11, Commercial Mortgage Pass-Through
Certificates, Series 0000-XXX00.
"XxxxxxxxxXxxx Hotel Special Servicer": The special servicer
under the ChampionsGate Hotel Pooling Agreement, which of as of the Closing Date
is CWCapital Asset Management LLC.
"ChampionsGate Hotel Trustee": The trustee under the
ChampionsGate Hotel Pooling Agreement, which of as of the Closing Date is
LaSalle Bank, National Association.
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical Class designation, and each REMIC I
Regular Interest and Corresponding Component.
"Class A Certificates": Any one of the Class A Senior
Certificates and the Class A-Junior Certificates.
"Class A Junior Certificates": The Class A-M, Class A-MF, Class
A-MFL (through the Class A-MFL Regular Interest) and Class A-J Certificates.
"Class A Senior Certificate": Any one of the Class A-1, Class
A-2, Class A-2FL (through the Class A-2FL Regular Interest), Class A-3, Class
A-AB, Class A-4, Class A-5 and Class A-1A Certificates.
"Class A-1 Certificate": Any one of the Certificates with a
"Class A-1" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class A-1 Pass-Through Rate": A per annum rate equal to 5.6590%;
provided, however, the Class A-1 Pass-Through Rate shall not exceed the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class A-1A Certificate": Any one of the Certificates with a
"Class A-1A" designation on the face thereof, substantially in the form of
Exhibit A-8 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class A-1A Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate.
"Class A-2 Certificate": Any one of the Certificates with a
"Class A-2" designation on the face thereof, substantially in the form of
Exhibit A-2 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class A-2 Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate.
"Class A-2FL Certificate": Any one of the Certificates with a
"Class A-2FL" designation on the face thereof, substantially in the form of
Exhibit A-3 attached hereto, and evidencing a beneficial interest in the Class
A-2FL Grantor Trust for purposes of the Grantor Trust Provisions.
"Class A-2FL Distribution Conversion": With respect to any
Distribution Date (i) upon the occurrence and during the continuation of a Class
A-2FL Swap Default of the nature described in clause (i) of the definition of
Class A-2FL Swap Default while the Swap Trustee on behalf of the Class A-2FL
Grantor Trust is pursuing remedies under the Class A-2FL Swap Contract pursuant
to Section 3.31 or (ii) immediately upon and following the termination of the
Class A-2FL Swap Contract until a replacement Class A-2FL Swap Contract is
entered into, if any, the conversion of distributions on the Class A-2FL
Certificates from distributions based, in part, on floating interest payments
from the Class A-2FL Swap Counterparty under the Class A-2FL Swap Contract to
distributions based solely on fixed interest distributions in respect of the
Class A-2FL Regular Interest, as specified in Section 4.01(l).
"Class A-2FL Fixed Swap Payment": With respect to any
Distribution Date, the fixed amount required to be paid to the Class A-2FL Swap
Counterparty by the Class A-2FL Grantor Trust under the Class A-2FL Swap
Contract.
"Class A-2FL Floating Rate Account": The trust account or
accounts created and maintained as a separate account or accounts (or as a
subaccount of the Distribution Account) by the Swap Trustee in the Class A-2FL
Grantor Trust pursuant to Section 3.04(c), which shall be entitled "Xxxxx Fargo
Bank, N.A., as Trustee, in trust for the registered holders of Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-3, Class A-2FL Certificates, Class A-2FL Floating Rate Account", and which
must be an Eligible Account (or a subaccount of an Eligible Account). The Class
A-2FL Floating Rate Account shall not be an asset of either REMIC I or REMIC II.
"Class A-2FL Floating Swap Payment": With respect to any
Distribution Date, the floating amount required to be paid to the Class A-2FL
Grantor Trust by the Class A-2FL Swap Counterparty under the Class A-2FL Swap
Contract.
"Class A-2FL Grantor Trust": That certain "grantor trust" (within
the meaning of the Grantor Trust Provisions), designated as the "Class A-2FL
Grantor Trust", the assets of which are the Class A-2FL Grantor Trust Assets and
established on or prior to the Closing Date and maintained in the name of the
Swap Trustee for the benefit of each of the holders of the Class A-2FL
Certificates.
"Class A-2FL Grantor Trust Assets": The segregated pool of assets
consisting of the A-2FL Regular Interest, the Class A-2FL Swap Contract and the
Class A-2FL Floating Rate Account and the proceeds thereof, the beneficial
ownership of which is represented by the Class A-2FL Certificates.
"Class A-2FL Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to (A) the sum of: (i) the Distributable
Certificate Interest received in respect of the Class A-2FL Regular Interest for
such Distribution Date, (ii) the Class A-2FL Net Swap Payment, if any payable by
the Class A-2FL Swap Counterparty, and (iii) any termination payment paid by the
Class A-2FL Swap Counterparty to the Swap Trustee upon the termination of the
Class A-2FL Swap Contract provided no replacement Class A-2FL Swap Contract has
been entered into prior to such Distribution Date, less (B) the Class A-2FL Net
Swap Payment, if any payable by the Class A-2FL Grantor Trust, for such
Distribution Date.
"Class A-2FL Net Swap Payment": With respect to the related
Interest Accrual Period, net payment required to be made by (A) the Class A-2FL
Grantor Trust to the Class A-2FL Swap Counterparty to the extent of any excess
of (i) the Class A-2FL Fixed Swap Payment over (ii) the Class A-2FL Floating
Swap Payment for such period or (B) the Class A-2FL Swap Counterparty to the
Class A-2FL Grantor Trust to the extent of any excess of (x) the Class A-2FL
Floating Swap Payment for such period over (y) the Class A-2FL Fixed Swap
Payment for such period.
"Class A-2FL Pass-Through Rate": For any Distribution Date on
which a Class A-2FL Distribution Conversion has not occurred and is not
continuing, a per annum rate equal to LIBOR plus 0.1700% and, for any
Distribution Date on which a Class A-2FL Distribution Conversion has occurred
and is continuing a per annum rate equal to the Weighted Average Adjusted Net
Mortgage Rate.
"Class A-2FL Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal allocated pursuant
to Section 4.01 in respect of the Class A-2FL Regular Interest on such
Distribution Date.
"Class A-2FL Regular Interest": The uncertificated interest in
REMIC II, designated as "Class A-2FL", constituting a "regular interest" in
REMIC II for purposes of the REMIC Provisions and having the characteristics
attributable thereto in this Agreement.
"Class A-2FL Regular Interest Pass-Through Rate": A per annum
rate equal to the Weighted Average Adjusted Net Mortgage Rate.
"Class A-2FL Swap Contract": The 1992 ISDA-Master Agreement
(Multi-Currency Cross Border) together with the related schedule, confirmation
and any annexes thereto, dated as of July 26, 2007, by and among the A-2FL Swap
Counterparty and the Swap Trustee on behalf of the Class A-2FL Grantor Trust, or
any replacement interest rate swap contract entered into by the Swap Trustee in
accordance with this Agreement.
"Class A-2FL Swap Counterparty": Bear Xxxxxxx Capital Markets
Inc., a Delaware corporation, acting in such capacity or its successor in
interest or any swap counterparty under a replacement Class A-2FL Swap Contract.
"Class A-2FL Swap Default": Any failure on the part of the Class
A-2FL Swap Counterparty to (i) make a required payment under the Class A-2FL
Swap Contract, as and when due thereunder or (ii) any early termination date as
designated under the Class A-2FL Swap Contract shall have occurred.
"Class A-2FL Swap Termination Fees": Any fees or expenses payable
by the Class A-2FL Swap Counterparty to the Class A-2FL Grantor Trust in
connection with a Class A-2FL Swap Default, termination of the Class A-2FL Swap
Contract or liquidation of the Class A-2FL Swap Contract, as specified in the
Class A-2FL Swap Contract.
"Class A-3 Certificate": Any one of the Certificates with a
"Class A-3" designation on the face thereof, substantially in the form of
Exhibit A-4 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class A-3 Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate.
"Class A-4 Certificate": Any one of the Certificates with a
"Class A-4" designation on the face thereof, substantially in the form of
Exhibit A-6 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class A-4 Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate.
"Class A-5 Certificate": Any one of the Certificates with a
"Class A-5" designation on the face thereof, substantially in the form of
Exhibit A-7 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class A-5 Pass-Through Rate": A per annum rate equal to 5.3770%.
"Class A-AB Certificate": Any one of the Certificates with a
"Class A-AB" designation on the face thereof, substantially in the form of
Exhibit A-5 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class A-AB Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate.
"Class A-J Certificate": Any one of the Certificates with a
"Class A-J" designation on the face thereof, substantially in the form of
Exhibit A-13 attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of the REMIC Provisions.
"Class A-J Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate.
"Class A-MF Certificate": Any one of the Certificates with a
"Class A-MF" designation on the face thereof, substantially in the form of
Exhibit A-11 attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of the REMIC Provisions.
"Class A-MF Pass-Through Rate": A fixed per annum rate equal to
5.3170%.
"Class A-MFL Certificate": Any one of the Certificates with a
"Class A-MFL" designation on the face thereof, substantially in the form of
Exhibit A-12 attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of the REMIC Provisions.
"Class A-MFL Distribution Conversion": With respect to any
Distribution Date (i) upon the occurrence and during the continuation of a Class
A-MFL Swap Default of the nature described in clause (i) of the definition of
Class A-MFL Swap Default while the Swap Trustee on behalf of the Class A-MFL
Grantor Trust is pursuing remedies under the Class A-MFL Swap Contract pursuant
to Section 3.32 or (ii) immediately upon and following the termination of the
Class A-MFL Swap Contract until a replacement Class A-MFL Swap Contract is
entered into, if any, the conversion of distributions on the Class A-MFL
Certificates from distributions based, in part, on floating interest payments
from the Class A-MFL Swap Counterparty under the Class A-MFL Swap Contract to
distributions based solely on fixed interest distributions in respect of the
Class A-MFL Regular Interest, as specified in Section 4.01(o).
"Class A-MFL Fixed Swap Payment": With respect to any
Distribution Date, the fixed amount required to be paid to the Class A-MFL Swap
Counterparty by the Class A-MFL Grantor Trust under the Class A-MFL Swap
Contract.
"Class A-MFL Floating Rate Account": The trust account or
accounts created and maintained as a separate account or accounts (or as a
subaccount of the Distribution Account) by the Swap Trustee in the Class A-MFL
Grantor Trust pursuant to Section 3.04(c), which shall be entitled "Xxxxx Fargo
Bank, N.A., as Trustee, in trust for the registered holders of Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-3, Class A-MFL Certificates, Class A-MFL Floating Rate Account", and which
must be an Eligible Account (or a subaccount of an Eligible Account). The Class
A-MFL Floating Rate Account shall not be an asset of either REMIC I or REMIC II.
"Class A-MFL Floating Swap Payment": With respect to any
Distribution Date, the floating amount required to be paid to the Class A-MFL
Grantor Trust by the Class A-MFL Swap Counterparty under the Class A-MFL Swap
Contract.
"Class A-MFL Grantor Trust": That certain "grantor trust" (within
the meaning of the Grantor Trust Provisions), designated as the "Class A-MFL
Grantor Trust", the assets of which are the Class A-MFL Grantor Trust Assets and
established on or prior to the Closing Date and maintained in the name of the
Swap Trustee for the benefit of each of the holders of the Class A-MFL
Certificates.
"Class A-MFL Grantor Trust Assets": The segregated pool of assets
consisting of the A-MFL Regular Interest, the Class A-MFL Swap Contract and the
Class A-MFL Floating Rate Account and the proceeds thereof, the beneficial
ownership of which is represented by the Class A-MFL Certificates.
"Class A-MFL Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to (A) the sum of: (i) the Distributable
Certificate Interest received in respect of the Class A-MFL Regular Interest for
such Distribution Date, (ii) the Class A-MFL Net Swap Payment, if any payable by
the Class A-MFL Swap Counterparty, and (iii) any termination payment paid by the
Class A-MFL Swap Counterparty to the Swap Trustee upon the termination of the
Class A-MFL Swap Contract provided no replacement Class A-MFL Swap Contract has
been entered into prior to such Distribution Date, less (B) the Class A-MFL Net
Swap Payment, if any payable by the Class A-MFL Grantor Trust, for such
Distribution Date.
"Class A-MFL Net Swap Payment": With respect to the related
Interest Accrual Period, net payment required to be made by (A) the Class A-MFL
Grantor Trust to the Class A-MFL Swap Counterparty to the extent of any excess
of (i) the Class A-MFL Fixed Swap Payment over (ii) the Class A-MFL Floating
Swap Payment for such period or (B) the Class A-MFL Swap Counterparty to the
Class A-MFL Grantor Trust to the extent of any excess of (x) the Class A-MFL
Floating Swap Payment for such period over (y) the Class A-MFL Fixed Swap
Payment for such period.
"Class A-MFL Pass-Through Rate": For any Distribution Date on
which a Class A-MFL Distribution Conversion has not occurred and is not
continuing, a per annum rate equal to LIBOR plus 0.2800% and, for any
Distribution Date on which a Class A-MFL Distribution Conversion has occurred
and is continuing a per annum rate equal to the Weighted Average Adjusted Net
Mortgage Rate.
"Class A-MFL Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal allocated pursuant
to Section 4.01 in respect of the Class A-MFL Regular Interest on such
Distribution Date.
"Class A-MFL Regular Interest": The uncertificated interest in
REMIC II, designated as "Class A-MFL", constituting a "regular interest" in
REMIC II for purposes of the REMIC Provisions and having the characteristics
attributable thereto in this Agreement.
"Class A-MFL Regular Interest Pass-Through Rate": A per annum
rate equal to the Weighted Average Adjusted Net Mortgage Rate.
"Class A-MFL Swap Contract": The 1992 ISDA-Master Agreement
(Multi-Currency Cross Border) together with the related schedule, confirmation
and any annexes thereto, dated as of July 26, 2007, by and among the A-MFL Swap
Counterparty and the Swap Trustee on behalf of the Class A-MFL Grantor Trust, or
any replacement interest rate swap contract entered into by the Swap Trustee in
accordance with this Agreement.
"Class A-MFL Swap Counterparty": Bear Xxxxxxx Capital Markets
Inc., a Delaware corporation, acting in such capacity or its successor in
interest or any swap counterparty under a replacement Class A-MFL Swap Contract.
"Class A-MFL Swap Default": Any failure on the part of the Class
A-MFL Swap Counterparty to (i) make a required payment under the Class A-MFL
Swap Contract, as and when due thereunder or (ii) any early termination date as
designated under the Class A-MFL Swap Contract shall have occurred.
"Class A-MFL Swap Termination Fees": Any fees or expenses payable
by the Class A-MFL Swap Counterparty to the Class A-MFL Grantor Trust in
connection with a Class A-MFL Swap Default, termination of the Class A-MFL Swap
Contract or liquidation of the Class A-MFL Swap Contract, as specified in the
Class A-MFL Swap Contract.
"Class B Certificate": Any one of the Certificates with a "Class
B" designation on the face thereof, substantially in the form of Exhibit A-14
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class B Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate.
"Class C Certificate": Any one of the Certificates with a "Class
C" designation on the face thereof, substantially in the form of Exhibit A-15
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class C Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate.
"Class D Certificate": Any one of the Certificates with a "Class
D" designation on the face thereof, substantially in the form of Exhibit A-16
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class D Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate.
"Class E Certificate": Any one of the Certificates with a "Class
E" designation on the face thereof, substantially in the form of Exhibit A-17
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class E Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate.
"Class F Certificate": Any one of the Certificates with a "Class
F" designation on the face thereof, substantially in the form of Exhibit A-18
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class F Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate.
"Class G Certificate": Any one of the Certificates with a "Class
G" designation on the face thereof, substantially in the form of Exhibit A-19
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class G Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate.
"Class H Certificate": Any one of the Certificates with a "Class
H" designation on the face thereof, substantially in the form of Exhibit A-20
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class H Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate.
"Class J Certificate": Any one of the Certificates with a "Class
J" designation on the face thereof, substantially in the form of Exhibit A-21
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class J Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate.
"Class K Certificate": Any one of the Certificates with a "Class
K" designation on the face thereof, substantially in the form of Exhibit A-22
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class K Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate.
"Class L Certificate": Any one of the Certificates with a "Class
L" designation on the face thereof, substantially in the form of Exhibit A-23
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class L Pass-Through Rate": A per annum rate equal to 5.5010%;
provided, however, the Class L Pass-Through Rate shall not exceed the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class M Certificate": Any one of the Certificates with a "Class
M" designation on the face thereof, substantially in the form of Exhibit A-24
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class M Pass-Through Rate": A per annum rate equal to 5.5010%;
provided, however, the Class M Pass-Through Rate shall not exceed the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class N Certificate": Any one of the Certificates with a "Class
N" designation on the face thereof, substantially in the form of Exhibit A-25
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class N Pass-Through Rate": A per annum rate equal to 5.5010%;
provided, however, the Class N Pass-Through Rate shall not exceed the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class O Certificate": Any one of the Certificates with a "Class
O" designation on the face thereof, substantially in the form of Exhibit A-26
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class O Pass-Through Rate": A per annum rate equal to 5.5010%;
provided, however, the Class O Pass-Through Rate shall not exceed the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class P Certificate": Any one of the Certificates with a "Class
P" designation on the face thereof, substantially in the form of Exhibit A-27
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class P Pass-Through Rate": A per annum rate equal to 5.5010%;
provided, however, the Class P Pass-Through Rate shall not exceed the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class Principal Balance": The aggregate principal amount of any
Class of Sequential Pay Certificates or the Class A-2FL Regular Interest or the
Class A-MFL Regular Interest outstanding as of any date of determination. As of
the Closing Date, the Class Principal Balance of each such Class of Sequential
Pay Certificates or Class A-2FL Regular Interest or Class A-MFL Regular
Interest, as applicable, shall equal the Initial Class Principal Balance
thereof. On each Distribution Date, the Class Principal Balance of each Class of
Sequential Pay Certificates and the Class A-2FL Regular Interest and Class A-MFL
Regular Interest shall be permanently reduced by the amount of any distributions
of principal made thereon on such Distribution Date pursuant to Section 4.01(b),
and shall be further permanently reduced on such Distribution Date as and to the
extent provided in Section 4.04. The Class Principal Balance of the Class A-2FL
and Class A-MFL Certificates shall be equal at all times to the Class Principal
Balance of the Class A-2FL Regular Interest and Class A-MFL Regular Interest,
respectively.
"Class Q Certificate": Any one of the Certificates with a "Class
Q" designation on the face thereof, substantially in the form of Exhibit A-28
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class Q Pass-Through Rate": A per annum rate equal to 5.5010%;
provided, however, the Class Q Pass-Through Rate shall not exceed the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class R-I Certificate": Any one of the Certificates with a
"Class R-I" designation on the face thereof, substantially in the form of
Exhibit A-30 attached hereto, and evidencing the REMIC I Residual Interest for
purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a
"Class R-II" designation on the face thereof, substantially in the form of
Exhibit A-31 attached hereto, and evidencing the sole Class of "residual
interest" in REMIC II for purposes of the REMIC Provisions.
"Class S Certificate": Any one of the Certificates with a "Class
S" designation on the face thereof, substantially in the form of Exhibit A-29
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class S Pass-Through Rate": A per annum rate equal to 5.5010%;
provided, however, the Class S Pass-Through Rate shall not exceed the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class XW Certificate": Any one of the Certificates with a "Class
XW" designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class XW Notional Amount": As of any date of determination, the
sum of the then Component Notional Amounts of all of the Components.
"Class XW Pass-Through Rate": With respect to the initial
Distribution Date, 0.0365% per annum, and for any subsequent Distribution Date,
the weighted average of the Class XW Strip Rates for the respective Components
for such Distribution Date (weighted on the basis of the respective Component
Notional Amounts of such Components outstanding immediately prior to such
Distribution Date).
"Class XW Strip Rate": With respect to any Class of Components
for any Distribution Date, a rate per annum equal to (i) the Weighted Average
Adjusted Net Mortgage Rate for such Distribution Date minus (ii) the
Pass-Through Rate for the Corresponding Certificates (provided that in no event
shall any Class XW Strip Rate be less than zero).
"Clearstream": Clearstream Banking, societe anonyme.
"Closing Date": July 26, 2007.
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, issuers, initial purchasers,
placement agents and underwriters generally involved in the commercial mortgage
loan securitization industry that is the principal such association or
organization in the commercial mortgage loan securitization industry and one of
whose principal purposes is the establishment of industry standards for
reporting transaction-specific information relating to commercial mortgage
pass-through certificates and commercial mortgage-backed bonds and the
commercial mortgage loans and foreclosed properties underlying or backing them
to investors holding or owning such certificates or bonds, and any successor to
such other association or organization. If an organization or association
described in one of the preceding sentences of this definition does not exist,
"CMSA" shall be deemed to refer to such other association or organization as
shall be selected by the Master Servicer and reasonably acceptable to the
Trustee, the Special Servicer and the Directing Certificateholder.
"CMSA Advance Recovery Report": The monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Advance Recovery Report" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Advance Recovery Report" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Trustee.
"CMSA Bond Level File": The monthly report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Bond Level File" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Trustee.
"CMSA Collateral Summary File": The report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Collateral Summary File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Trustee.
"CMSA Comparative Financial Status Report": A report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Comparative Financial Status Report" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Master Servicer and the Special Servicer.
"CMSA Delinquent Loan Status Report": A report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Delinquent Loan Status Report" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Master Servicer and the Special Servicer.
"CMSA Financial File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the
"Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Master Servicer.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": A report substantially in the form of, and containing the information
called for in, the downloadable form of the "Historical Loan Modification and
Corrected Mortgage Loan Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Master Servicer and the Special Servicer.
"CMSA Investor Reporting Package": Collectively refers to:
(a) the following seven electronic files: (i) CMSA Bond Level
File, (ii) CMSA Collateral Summary File, (iii) CMSA Property File, (iv)
CMSA Loan Periodic Update File, (v) CMSA Loan Setup File, (vi) CMSA
Financial File, and (vii) CMSA Special Servicer Loan File;
(b) the following eight supplemental reports: (i) CMSA
Comparative Financial Status Report, (ii) CMSA Delinquent Loan Status
Report, (iii) CMSA Historical Loan Modification and Corrected Mortgage
Loan Report, (iv) CMSA Operating Statement Analysis Report, (v) CMSA NOI
Adjustment Worksheet, (vi) CMSA REO Status Report, (vii) CMSA Servicer
Watch List and (viii) CMSA Loan Level Reserve - LOC Report;
(c) the CMSA Advance Recovery Report; and
(d) such other reports as CMSA may hereafter designate as part of
the CMSA Investor Reporting Package that are reasonably acceptable to the
Master Servicer, Special Servicer or Trustee, as applicable.
"CMSA Loan Level Reserve-LOC Report": The monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Level Reserve LOC Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage securities transactions
generally and is reasonably acceptable to the Master Servicer.
"CMSA Loan Periodic Update File": The monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Periodic Update File" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage securities transactions
generally and is reasonably acceptable to the Master Servicer, the Special
Servicer and the Trustee.
"CMSA Loan Setup File": The report substantially in the form of,
and containing the information called for in, the downloadable form of the "Loan
Setup File" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and is reasonably acceptable to the
Master Servicer, the Special Servicer and the Trustee.
"CMSA NOI Adjustment Worksheet": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "NOI Adjustment Worksheet" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
acceptable to the Master Servicer or the Special Servicer, as applicable, and in
any event, shall present the computations made in accordance with the
methodology described in such form to "normalize" the full year net operating
income and debt service coverage numbers used in the other reports required by
this Agreement.
"CMSA Operating Statement Analysis Report": A report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Operating Statement Analysis Report" available as of
the Closing Date on the CMSA Website or in such other form for the presentation
of such information and containing such additional information as may from time
to time be recommended by the CMSA for commercial mortgage-backed securities
transactions generally and is reasonably acceptable to the Master Servicer.
"CMSA Property File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "Property
File" available as of the Closing Date on the CMSA Website, or such other form
for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and is reasonably acceptable to the
Master Servicer and the Special Servicer.
"CMSA Reconciliation of Funds Report": The report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Reconciliation of Funds Report" available as of the Closing Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be
recommended by the CMSA for commercial mortgage securities transactions
generally and is reasonably acceptable to the Trustee.
"CMSA REO Status Report": A report substantially in the form of,
and containing the information called for in, the downloadable form of the "REO
Status Report" available as of the Closing Date on the CMSA Website, or in such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Special Servicer.
"CMSA Servicer Watch List": For any Determination Date, a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Servicer Watch List" available as of the Closing Date
on the CMSA Website, or in such other final form for the presentation of such
information and containing such additional information as may from time to time
be promulgated as recommended by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Servicer Watch
List" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Special Servicer Loan File": The monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Special Servicer Loan File" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage securities transactions
generally and is reasonably acceptable to the Special Servicer.
"CMSA Website": The CMSA's Website located at "xxx.xxxx.xxx" or
such other primary website as the CMSA may establish for dissemination of its
report forms.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date, the
period commencing immediately following the Determination Date in the calendar
month preceding the month in which such Distribution Date occurs (or, in the
case of the initial Distribution Date, commencing immediately following the
Cut-off Date) and ending on and including the Determination Date in the calendar
month in which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission.
"Companion Loan": Each of the ChampionsGate Hotel Pari Passu
Companion Loan, Hilton Xxxxxxx Xxxx Passu Companion Loan, JQH Hotel Portfolio
Pari Passu Companion Loan, Metropolis Shopping Center Companion Loan, One Park
Avenue Pari Passu Companion Loan, Pacifica Tower Companion Loan and Xxxxxxxx
Xxxx Portfolio Pari Passu Companion Loan, as applicable.
"Companion Loan Holder": With respect to: (A) the ChampionsGate
Hotel Pari Passu Companion Loan, the ChampionsGate Hotel Pari Passu Companion
Loan Holder, (B) the Hilton Xxxxxxx Xxxx Passu Companion Loan, the Hilton
Xxxxxxx Xxxx Passu Companion Loan Holder, (C) the JQH Hotel Portfolio Pari Passu
Companion Loan, the JQH Hotel Portfolio Pari Passu Companion Loan Holder, (D)
the Metropolis Shopping Center Companion Loan, the Metropolis Shopping Center
Companion Loan Holder, (E) the One Park Avenue Pari Passu Companion Loan, the
One Park Avenue Pari Passu Companion Loan Holder, (F) the Pacifica Tower
Companion Loan, the Pacifica Tower Companion Loan Holder, and (G) the Xxxxxxxx
Xxxx Portfolio Pari Passu Companion Loan, the Xxxxxxxx Xxxx Multifamily
Portfolio Pari Passu Companion Loan Holder.
"Companion Loan Securities": Any class of securities backed,
wholly or partially, by any of the ChampionsGate Hotel Pari Passu Companion
Loan, Hilton Xxxxxxx Xxxx Passu Companion Loan, JQH Hotel Portfolio Pari Passu
Companion Loan, Metropolis Shopping Center Companion Loan, One Park Avenue Pari
Passu Companion Loan, Pacifica Tower Companion Loan or Xxxxxxxx Xxxx Portfolio
Pari Passu Companion Loan.
"Compensating Interest Payment": With respect to any Distribution
Date, any payment made by the Master Servicer pursuant to Section 3.19(e) to
cover any Balloon Payment Interest Shortfall and Prepayment Interest Shortfalls
incurred during the related Collection Period.
"Component": Each of Component XX-0, Xxxxxxxxx XX-0, Component
XA-2FL, Component XA-3, Component XA-AB, Component XX-0, Xxxxxxxxx XX-0,
Xxxxxxxxx XX-0X, Component XA-M, Component XA-MF, Component XA-MFL, Component
XA-J, Component XB, Component XC, Component XD, Component XE, Component XF,
Component XG, Component XH, Component XJ, Component XK, Component XL, Component
XM, Component XN, Component XO, Component XP, Component XQ and Component XS.
"Component Notional Amount": With respect to each Component and
any date of determination, an amount equal to the then REMIC I Principal Balance
of its Corresponding REMIC I Regular Interest.
"Component XA-1": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-1 as of any date of
determination.
"Component XA-1A": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-1A as of any date of
determination.
"Component XA-2": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-2 as of any date of
determination.
"Component XA-2FL": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-2FL as of any date of
determination.
"Component XA-3": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-3 as of any date of
determination.
"Component XA-4": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-4 as of any date of
determination.
"Component XA-5": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-5 as of any date of
determination.
"Component XA-AB": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-AB as of any date of
determination.
"Component XA-J": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-J as of any date of
determination.
"Component XA-M": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-M as of any date of
determination.
"Component XA-MF": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-MF as of any date of
determination.
"Component XA-MFL": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-MFL as of any date of
determination.
"Component XB": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LB as of any date of
determination.
"Component XC": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LC as of any date of
determination.
"Component XD": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LD as of any date of
determination.
"Component XE": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LE as of any date of
determination.
"Component XF": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LF as of any date of
determination.
"Component XG": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LG as of any date of
determination.
"Component XH": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LH as of any date of
determination.
"Component XJ": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LJ as of any date of
determination.
"Component XK": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LK as of any date of
determination.
"Component XL": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LL as of any date of
determination.
"Component XM": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LM as of any date of
determination.
"Component XN": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LN as of any date of
determination.
"Component XO": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LO as of any date of
determination.
"Component XP": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LP as of any date of
determination.
"Component XQ": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LQ as of any date of
determination.
"Component XS": One of the 28 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LS as of any date of
determination.
"Condemnation Proceeds": All cash amounts received by the Master
Servicer or the Special Servicer in connection with the taking of all or a part
of a Mortgaged Property by exercise of the power of eminent domain or
condemnation (in the case of a Non-Serviced Mortgage Loan, to the extent of any
portion of such amounts received by the Master Servicer pursuant to the related
Intercreditor Agreement), exclusive of any portion thereof required to be
released to the related Mortgagor or any other third-party in accordance with
applicable law and/or the terms and conditions of the related loan documents or
any other applicable document.
"Confidential Information": As defined in Section 3.24.
"Control Appraisal Period": With respect to (i) the Metropolis
Shopping Center A/B Whole Loan, the Metropolis Shopping Center Control Appraisal
Period, and (ii) the Pacifica Tower A/B Whole Loan, the Pacifica Tower Control
Appraisal Period.
"Controlling Class": As of any date of determination, the
outstanding Class of Sequential Pay Certificates, Class A-2FL Certificates or
Class A-MFL Certificates with the lowest payment priority (the Class A Senior
Certificates being treated as a single Class for this purpose and the Class A-M,
Class A-MF and Class A-MFL Certificates being treated as a single Class for this
purpose) that has a then outstanding Certificate Balance at least equal to 25%
of its Initial Certificate Balance (or, if no Class (or Classes being treated as
a single Class) of Sequential Pay Certificates, Class A-2FL Certificates or
Class A-MFL Certificates has a Certificate Balance at least equal to 25% of its
Initial Certificate Balance, then the Controlling Class will be the outstanding
Class of Sequential Pay Certificates, Class A-2FL Certificates or Class A-MFL
Certificates with the then largest outstanding Certificate Balance). The
Controlling Class as of the Closing Date will be the Class S Certificates.
"Controlling Class Certificateholders": Each Holder (or
Certificate Owner, if applicable) of a Certificate of the Controlling Class as
certified to the Trustee from time to time by such Holder (or Certificate
Owner).
"Controlling Class Option Holder": The Purchase Option held by
the Majority Certificateholder of the Controlling Class pursuant to Section
3.18(c).
"Controlling Holder": With respect to (i) the Metropolis Shopping
Center A/B Whole Loan, the Metropolis Shopping Center A/B Whole Loan Controlling
Holder and (ii) the Pacifica Tower A/B Whole Loan, the Pacifica Tower A/B Whole
Loan Controlling Holder. Each such initial Controlling Holder shall be set forth
on Schedule VII hereto.
"Corporate Trust Office": The principal corporate trust office of
the Trustee, for purposes of Certificate transfer services, at the date of the
execution of this Agreement is located at (i) with respect to maintenance of the
Certificate Register and the transfer and exchange of Certificates, the office
of the Trustee located at Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Corporate Trust Services (CMBS) BACM 2007-3,
and (ii) for all other purposes, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000, Attention: Corporate Trust Services Group (CMBS), Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-3, and with respect to any successor Trustee, the principal office thereof
as designated in writing to the Depositor.
"Corrected Serviced Loan": Any Serviced Loan that had been a
Specially Serviced Loan but as to which all Servicing Transfer Events have
ceased to exist other than in connection with a sale pursuant to Section 3.18.
"Corresponding Certificate": As defined in the Preliminary
Statement with respect to any Corresponding Component or any Corresponding REMIC
I Regular Interest.
"Corresponding Component": As defined in the Preliminary
Statement with respect to any Corresponding Certificate or any Corresponding
REMIC I Regular Interest.
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary Statement with respect to any Corresponding Certificate or any
Corresponding Component.
"Covered Risks": As defined in Section 3.07(a).
"CPR": As defined in the Base Prospectus.
"Cross-Collateralized Mortgage Loan": Any Loan that is, by its
terms, cross-collateralized and cross-defaulted with any other Loan.
"Cross-Collateralized Set": Any set of Loans that is
cross-collateralized and cross-defaulted with each other.
"Current Principal Distribution Amount": With respect to any
Distribution Date, an amount (calculated in accordance with Section 1.03) equal
to the aggregate of, without duplication:
(a) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or deemed due, as
the case may be, made by or on behalf of the related borrower or advanced
in respect of the Mortgage Loans in the Mortgage Pool or in such Loan
Group, as applicable, and any REO Loans for their respective Due Dates
occurring during the related Collection Period or any prior Collection
Period (if not previously distributed);
(b) all Principal Prepayments received on the Mortgage Loans in
the Mortgage Pool or in such Loan Group, as applicable, during the
related Collection Period;
(c) with respect to any Balloon Loan that is included in the
Mortgage Pool or in such Loan Group, as applicable, as to which the
related Stated Maturity Date occurred during or prior to the related
Collection Period, any payment of principal (exclusive of any Principal
Prepayment and any amount described in subclause (d) of this definition)
that was made by or on behalf of the related Mortgagor during the related
Collection Period, net of any portion of such payment that represents a
recovery of the principal portion of any Monthly Payment (other than a
Balloon Payment) due, or the principal portion of any Assumed Monthly
Payment deemed due, in respect of such Balloon Loan on a Due Date during
or prior to the related Collection Period and not previously recovered;
(d) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds (net of related expenses) and Condemnation Proceeds
(net of related expenses) received on or in respect of the Mortgage Loans
during the related Collection Period (including any amount related to the
Loss of Value Payments to the extent that such amount was transferred
into the Certificate Account pursuant to Section 3.05(g) during the
related Collection Period) that were identified and applied by the Master
Servicer as recoveries of principal thereof, in each case net of any
portion of such amounts that represents a recovery of the principal
portion of any Monthly Payment (other than a Balloon Payment) due, or of
the principal portion of any Assumed Monthly Payment deemed due, in
respect of any such Mortgage Loan on a Due Date during or prior to the
related Collection Period and not previously recovered; and
(e) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds (net of related expenses), Condemnation Proceeds(net
of related expenses) and REO Revenues (net of related expenses) received
on or in respect of any REO Properties during the related Collection
Period that were identified and applied by the Master Servicer as
recoveries of principal of the related REO Loans, in each case net of any
portion of such amounts that represents a recovery of the principal
portion of any Monthly Payment (other than a Balloon Payment) due, or of
the principal portion of any Assumed Monthly Payment deemed due, in
respect of any such REO Loan or the predecessor Mortgage Loan on a Due
Date during or prior to the related Collection Period and not previously
recovered.
"CUSIP Number": With respect to each Certificate, the
identification number provided by the CUSIP Service Bureau and appearing on the
face of such Certificate.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, a Mortgage Loan Seller or an Affiliate of
either of them.
"Cut-off Date": July 1, 2007 or, with respect to Loan Nos. 100,
200, 300, 600, 700, 800, 1200, 1300, 1500, 1700, 1800, 1900, 2000, 2100 and
2200, July 6, 2007, or, with respect to Loan Nos. 1100, 1400 and 1600, July 7,
2007 (such Loan numbers as set forth on the Mortgage Loan Schedule attached
hereto as Schedule I).
"Cut-off Date Balance": With respect to any Mortgage Loan or
Companion Loan, the outstanding principal balance of such Loan as of the Cut-off
Date, net of all unpaid payments of principal due in respect thereof on or
before such date.
"Debt Service Coverage Ratio": With respect to any Loan, as of
any date of determination, and calculated without regard to any
cross-collateralization feature of such Loan, the ratio of (x) the Net Cash Flow
(before payment of any debt service on such Loan) generated by the related
Mortgaged Property or Mortgaged Properties during the most recently ended period
of not more than 12 months or less than three months for which financial
statements (whether or not audited) have been received by or on behalf of the
related Mortgage Loan Seller (prior to the Closing Date) or the Master Servicer
or the Special Servicer (following the Closing Date), to (y) the product of the
amount of the Monthly Payment in effect for such Loan as of such date of
determination, multiplied by the number of months represented in the financial
statements. The Master Servicer may, in accordance with CMSA reporting
standards, report Net Cash Flow with respect to each Mortgaged Property where
one or more Loans are secured by multiple Mortgaged Properties; provided,
however, for purposes of determining Debt Service Coverage Ratio compliance,
calculations shall be made at the Loan level.
"Default Charges": Any Default Interest and/or late payment
charges that are paid or payable, as the context may require, in respect of any
Loan or REO Loan.
"Default Interest": With respect to any Loan (or successor REO
Loan), any amounts collected thereon, other than late payment charges or
Prepayment Premiums, that represent interest in excess of interest accrued on
the principal balance of such Loan (or REO Loan) at the related Mortgage Rate,
such excess interest arising out of a default under such Loan.
"Defaulted Serviced Loan": A Serviced Loan (i) that is delinquent
60 days or more in respect to a Monthly Payment (not including the Balloon
Payment) or (ii) that is delinquent in respect of its Balloon Payment unless (w)
the related Borrower is actively seeking a refinancing commitment, (x) the
related Borrower continues to make payments in the amount of its Assumed Monthly
Payment, (y) subject to Section 3.21(f), the Directing Certificateholder
consents, and (z) the related Mortgagor has delivered to the Master Servicer, on
or before the 60th day after the Due Date of such Balloon Payment, a refinancing
commitment reasonably acceptable to the Master Servicer, for such longer period,
not to exceed 120 days beyond the Due Date of such Balloon Payment, during which
the refinancing would occur (provided that if such refinancing does not occur
during such time specified in the commitment, the related Serviced Loan will
immediately become a Defaulted Serviced Loan), in either case such delinquency
to be determined without giving effect to any grace period permitted by the
related Mortgage or Mortgage Note and without regard to any acceleration of
payments under the related Mortgage and Mortgage Note, or (iii) as to which the
Master Servicer or Special Servicer has, by written notice to the related
Mortgagor, accelerated the maturity of the indebtedness evidenced by the related
Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defective Mortgage Loan": Any Mortgage Loan as to which there
exists a Material Breach or a Material Document Defect that was not cured in all
material respects.
"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Mortgage Loan": A Defective Mortgage Loan that is
repurchased from the Trust or replaced with one or more Replacement Mortgage
Loans, in either case as contemplated by Section 2.03.
"Denomination": As defined in Section 5.01(a).
"Depositor": Banc of America Commercial Mortgage Inc., or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other
financial institution or other Person for whom from time to time the Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
earlier of (i) the sixth day of the month in which such Distribution Date
occurs, or if such sixth day is not a Business Day, the immediately preceding
Business Day, and (ii) fourth Business Day before such Distribution Date.
"Determination Information": As defined in Section 3.18(b).
"Directing Certificateholder": The Controlling Class
Certificateholder (or its designee) selected by the Majority Certificateholder
of the Controlling Class, as certified by the Trustee from time to time;
provided, however, that (i) absent such selection, or (ii) until a Directing
Certificateholder is so selected, or (iii) upon receipt of a notice from a
majority of the Controlling Class, by Certificate Principal Balance, that a
Directing Certificateholder is no longer designated, the Controlling Class
Certificateholder that owns the largest aggregate Certificate Principal Balance
of the Controlling Class will be the Directing Certificateholder. The initial
Directing Certificateholder is Anthracite Capital, Inc.
"Directly Operate": With respect to any REO Property (other than
any REO Property related to a Non-Serviced Loan), the furnishing or rendering of
services to the tenants thereof, the management or operation of such REO
Property, the holding of such REO Property primarily for sale to customers
(other than the sale of a REO Property pursuant to Section 3.18, the performance
of any construction work thereon or any use of such REO Property in a trade or
business conducted by REMIC I other than through an Independent Contractor;
provided, however, the Special Servicer (or any Sub-Servicer on behalf of the
Special Servicer) shall not be considered to Directly Operate a REO Property
solely because the Special Servicer (or any Sub-Servicer on behalf of the
Special Servicer) establishes rental terms, chooses tenants, enters into or
renews leases, deals with taxes and insurance, or makes decisions as to, or
funds, repairs or capital expenditures with respect to such REO Property
(including, without limitation, construction activity to effect repairs or in
conjunction with leasing activity).
"Discount Rate": With respect to any applicable Prepayment
Premium calculation, is the yield on the United Stated Treasury issue with a
maturity date closest to the Maturity Date for the Mortgage Loan being prepaid
(if applicable, converted to a monthly compounded nominal yield), or an
interpolation thereof, in any case as specified and used in accordance with the
related loan documents in calculating the Prepayment Premium with respect to the
related prepayment.
"Disqualified Non-U.S. Person": With respect to a Class R-I or
Class R-II Certificate, any Non-U.S. Person or agent thereof other than (i) a
Non-U.S. Person that holds the Class R-I or Class R-II Certificate in connection
with the conduct of a trade or business within the United States and has
furnished the transferor and the Certificate Registrar with an effective IRS
Form W-8ECI (or successor form) or (ii) a Non-U.S. Person that has delivered to
both the transferor and the Certificate Registrar an opinion of a nationally
recognized tax counsel to the effect that the transfer of the Class R-I or Class
R-II Certificate to it is in accordance with the requirements of the Code and
the regulations promulgated thereunder and that such transfer of the Class R-I
or Class R-II Certificate will not be disregarded for federal income tax
purposes.
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality that is a corporation if all of its activities are subject to
tax and, except for Xxxxxxx Mac, a majority of its board of directors is not
selected by any such governmental unit), (ii) a foreign government,
international organization, or any agency or instrumentality of either of the
foregoing, (iii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) that is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code or (v)
any other Person so designated by the REMIC Administrator based upon an Opinion
of Counsel (provided to the Trustee by such Person at its expense) that the
holding of an Ownership Interest in a REMIC Residual Certificate by such Person
may cause the Trust or any Person having an Ownership Interest in any Class of
Certificates, other than such Person, to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a REMIC Residual Certificate to such Person. The
terms "United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": For any Distribution Date
with respect to any Class of REMIC II Regular Certificates and the Class A-2FL
Regular Interest and Class A-MFL Regular Interest, the Accrued Certificate
Interest in respect of such Class of Certificates and the Class A-2FL Regular
Interest and Class A-MFL Regular Interest for such Distribution Date, reduced
(to not less than zero) by that portion, if any, of the Net Aggregate Prepayment
Interest Shortfall for such Distribution Date allocated to such Class of
Certificates or Class A-2FL Regular Interest or Class A-MFL Regular Interest as
set forth below. The Net Aggregate Prepayment Interest Shortfall, if any, for
each Distribution Date shall be allocated, pro rata, to each Class of REMIC II
Regular Certificates and the Class A-2FL Regular Interest and Class A-MFL
Regular Interest based on Accrued Certificate Interest for each such Class of
Certificates or Class A-2FL Regular Interest or Class A-MFL Regular Interest for
such Distribution Date.
"Distribution Account": The segregated account or accounts
created and maintained by the Trustee pursuant to Section 3.04(b) in trust for
the Certificateholders, which shall be entitled "Xxxxx Fargo Bank, N.A., as
Trustee, in trust for the registered holders of Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-3,
Distribution Account".
"Distribution Date": The 10th day of any month, or if such 10th
day is not a Business Day, the Business Day immediately following, commencing in
August 2007.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": With respect to any Mortgage Loan, any
document required to be part of the related Mortgage File that has not been
properly executed, is missing, contains information that does not conform in any
material respect with the corresponding information set forth in the Mortgage
Loan Schedule (and the terms of such document have not been modified by written
instrument contained in the related Mortgage File), or does not appear to be
regular on its face.
"Domestic Global Certificate": Any of the single, permanent
global certificates that represents the Certificates sold in reliance on Rule
144A.
"DTC": As defined in Section 5.03(d).
"Due Date": With respect to (i) any Loan on or prior to its
Stated Maturity Date, the day of the month set forth in the related Mortgage
Note on which each Monthly Payment on such Loan is scheduled to be first due;
(ii) any Loan after its Stated Maturity Date, the day of the month set forth in
the related Mortgage Note on which each Monthly Payment on such Loan had been
scheduled to be first due; and (iii) any REO Loan, the day of the month set
forth in the related Mortgage Note on which each Monthly Payment on the related
Loan had been scheduled to be first due.
"Eligible Account": Any of (i) an account maintained with a
federal or state chartered depository institution or trust company, including,
without limitation, the Trustee (if it meets the following rating criteria), the
long-term unsecured debt obligations of which are rated no less than "A" by
Fitch, "Aa3" by Xxxxx'x and "AA-" by S&P (or "A-" by S&P if such depository's
short-term unsecured debt rating is no less than "A-1" by S&P) (if the deposits
are to be held in the account for more than 30 days) (or if such account is
maintained with PNC Bank, National Association or KeyBank National Association,
rated no less than "A" by Xxxxx, "X0" by Xxxxx'x and with respect to S&P meets
the requirements set forth in this clause (i)), or the short-term unsecured debt
obligations of which are rated no less than "F-1" by Fitch, "P-1" by Xxxxx'x and
"A-1" by S&P (if the deposits are to be held in the account for 30 days or
less), in each case, at any time funds are on deposit therein, (ii) a segregated
trust account or accounts maintained with the corporate trust department of a
federally chartered depository institution or trust company, including, without
limitation, the Trustee, acting in its fiduciary capacity and subject to the
regulations regarding fiduciary funds on deposit therein under 12 C.F.R.
ss.9.10(b) that has a combined capital surplus of at least $50,000,000, (iii) a
segregated trust account or accounts maintained with the corporate trust
department of a state chartered depository institution or trust company,
including, without limitation, the Trustee, acting in its fiduciary capacity and
subject to regulations regarding fiduciary funds on deposit therein
substantially similar to 12 C.F.R. ss.9.10(b) that has a combined capital
surplus of at least $50,000,000, or (iv) any other account that would not result
in the downgrade, qualification (if applicable) or withdrawal of the rating then
assigned by either Rating Agency to any Class of Certificates or Companion Loan
Securities (as confirmed in writing by each Rating Agency).
"Emergency Advance": Any Servicing Advance, whether or not it is
a Servicing Advance that, pursuant hereto, the Special Servicer is required to
make or to request the Master Servicer to make, that must be made within five
Business Days of the Special Servicer's becoming aware that it must be made to
avoid any material penalty, any material harm to a Mortgaged Property or any
other material adverse consequence to the Trust Fund.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Restricted Certificate": Any Non-Investment Grade
Sequential Pay Certificate; provided that any such Certificate (a) will cease to
be considered an ERISA Restricted Certificate and (b) will cease to be subject
to the transfer restrictions contained in Section 5.02(c) if, as of the date of
a proposed transfer of such Certificate, either (i) it is rated in one of the
four highest generic ratings categories by a Rating Agency or (ii) relevant
provisions of ERISA would permit transfer of such Certificate to a Plan.
"Escrow Payment": Any payment received by the Master Servicer or
the Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums and similar items
in respect of the related Mortgaged Property.
"Euroclear": Euroclear Bank S.A./N.V., as operator of the
Euroclear System, or its successor in such capacity.
"Eurohypo": Eurohypo AG, New York Branch, or its successors in
interest.
"Event of Default": One or more of the events described in
Section 7.01(a).
"Excess Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal balance of
such ARD Loan at the Excess Interest Rate (the payment of which interest shall,
under the terms of such Loan, be deferred until the entire outstanding principal
balance of such ARD Loan has been paid), together with all interest, if any,
accrued at the related Mortgage Rate on such deferred interest.
"Excess Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental increase in the Mortgage Rate for
such Loan resulting from the passage of such Anticipated Repayment Date.
"Excess Liquidation Proceeds": An amount equal to the excess, if
any, of: (a) the Net Liquidation Proceeds from the sale or liquidation of a
Specially Serviced Loan or REO Property, over (b) the sum of (i) the amount
needed to pay off the Loan or related REO Loan in full, including any related
Workout-Delayed Reimbursement Amounts or Unliquidated Advances; (ii) all unpaid
Advances and any unpaid Advance Interest thereon; and (iii) any related
Liquidation Fee. For the avoidance of doubt, Excess Liquidation Proceeds
allocable to any Companion Loan shall not be an asset of the Trust Fund or REMIC
I or REMIC II.
"Excess Liquidation Proceeds Account": The segregated account or
sub-account of the Distribution Account created and maintained by the Trustee
pursuant to Section 3.04(c)(iv) in trust for the Certificateholders, which shall
be entitled "Xxxxx Fargo Bank, N.A., as Trustee, in trust for the registered
holders of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-3, Excess Liquidation Proceeds Account".
"Exchange Act": The Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
"Exchange Certificate": The certificate necessary to exchange an
interest in a Regulation S Global Certificate for an interest in a Domestic
Global Certificate, which is in the form of Exhibit Q attached hereto, or the
certificate necessary to exchange an interest in a Domestic Global Certificate
for an interest in a Regulation S Global Certificate, which is in the form of
Exhibit O or Exhibit P, as applicable, hereto, in each case as described in
Section 5.02(l).
"Xxxxxx Mae": The Federal National Mortgage Association or any
successor.
"FDIC": The Federal Deposit Insurance Corporation or any
successor.
"Final Distribution Date": The final Distribution Date on which
any distributions are to be made on the Certificates as contemplated by Section
9.01.
"Final Recovery Determination": A determination made by the
Special Servicer, in its reasonable, good faith judgment and in accordance with
the Servicing Standard, with respect to any Loan or REO Property (other than a
Loan that is paid in full and other than a Loan or REO Property, as the case may
be, that is repurchased or replaced by the related Mortgage Loan Seller pursuant
to the related Mortgage Loan Purchase and Sale Agreement or purchased by the
Master Servicer, the Special Servicer or any Controlling Class
Certificateholder(s) pursuant to Section 9.01), that there has been a recovery
of all related Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds
and other payments or recoveries that will ultimately be recoverable.
With respect to any Non-Serviced Mortgage Loan, the term "Final
Recovery Determination" shall include any comparable determination made by the
related Non-Serviced Loan Master Servicer or Non-Serviced Loan Special Servicer,
as applicable, under the Non-Serviced Loan Pooling Agreement with respect to
such Non-Serviced Mortgage Loan or any related REO Property.
"FIRREA": The Financial Institutions Reform, Recovery and
Enforcement Act of 1989 (as amended).
"Fitch": Fitch, Inc. or its successor in interest. If neither
Fitch nor any successor remains in existence, "Fitch" shall be deemed to refer
to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, the Master Servicer, the Special Servicer and the REMIC
Administrator, and specific ratings of Fitch herein referenced shall be deemed
to refer to the equivalent ratings of the party so designated.
"Form 8-K Disclosure Information": As defined in Section 11.07.
"Xxxxxxx Mac": The Federal Home Loan Mortgage Corporation or any
successor.
"Free Writing Prospectus": The meaning assigned to "Free Writing
Prospectus" in the Underwriting Agreement.
"Global Certificates": The Certificates represented by the
Regulation S Global Certificates or the Domestic Global Certificates.
"Grantor Trust": Each of the Class A-2FL Grantor Trust and Class
A-MFL Grantor Trust.
"Ground Lease": The ground lease pursuant to which any Mortgagor
holds a leasehold interest in the related Mortgaged Property and any estoppels
or other agreements executed and delivered by the ground lessor in favor of the
lender under the Mortgage Loan.
"Group 1 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including, without limitation,
those so identified pursuant to CERCLA or any other U.S. federal, state or local
environmental related laws and regulations, and specifically including, without
limitation, asbestos and asbestos-containing materials, polychlorinated
biphenyls ("PCBs"), radon gas, petroleum and petroleum products, urea
formaldehyde and any substances classified as being "in inventory", "usable work
in process" or similar classification that would, if classified as unusable, be
included in the foregoing definition.
"Hilton Anatole Intercreditor Agreement": The Intercreditor and
Servicing Agreement dated as of July 1, 2007 by and between the Hilton Anatole
Note A-1 Holder and the Hilton Anatole Note A-2 Holder relating to the relative
rights of such holders, as the same may be further amended from time to time in
accordance with the terms thereof.
"Hilton Anatole Note A-1": With respect to the Hilton Xxxxxxx
Xxxx Passu Mortgage Loan, the related Mortgage Note that is included in the
Trust Fund.
"Hilton Anatole Note A-1 Holder": The holder of the Hilton
Anatole Note A-1, initially Bank of America, National Association.
"Hilton Anatole Note A-2": The Mortgage Note related to Hilton
Xxxxxxx Xxxx Passu Whole Loan that is not included in the Trust, which is pari
passu in right of payment to the Hilton Anatole Note A-1 as set forth in the
Hilton Anatole Intercreditor Agreement.
"Hilton Anatole Note A-2 Holder": The holder of the Hilton
Anatole Note A-2, initially Bank of America, National Association.
"Hilton Anatole Noteholders": The Hilton Anatole Note A-1 Holder
and Hilton Anatole Note A-2 Holder.
"Hilton Xxxxxxx Xxxx Passu Companion Loan": The loan evidenced by
the Hilton Anatole Note A-2.
"Hilton Xxxxxxx Xxxx Passu Companion Loan Holder": The holder of
the Hilton Xxxxxxx Xxxx Passu Companion Loan Holder.
"Hilton Xxxxxxx Xxxx Passu Mortgage Loan": The Mortgage Loan
identified as Loan No. 3406386 in the Mortgage Loan Schedule, which, together
with the Hilton Anatole Note A-1, is secured by a Mortgage on the related
Mortgaged Property.
"Hilton Xxxxxxx Xxxx Passu Whole Loan": The Hilton Xxxxxxx Xxxx
Passu Mortgage Loan together with the Hilton Xxxxxxx Xxxx Passu Companion Loan.
References herein to Hilton Xxxxxxx Xxxx Passu Whole Loan shall be construed to
refer to the aggregate indebtedness under the Hilton Anatole Note A-1 and the
Hilton Anatole Note A-2.
"Holder": See the definition of "Certificateholder" in this
Section 1.01.
"HRECC": Hypo Real Estate Capital Corporation ("HRECC")
originated and will be the mortgage loan seller with respect to three mortgage
loans, Loan numbers 101, 102 and 104 (such Loan numbers as set forth on the
Mortgage Loan Schedule attached hereto as Schedule I). Hypo Real Estate Capital
Corporation underwrote and originated each such mortgage loan and subsequently
transferred such mortgage loans to an affiliate, Hypo Public Finance USA, Inc.,
which will sell such mortgage loans to the Depositor. Hypo Real Estate Capital
Corporation will make the representations and warranties with respect to such
mortgage loans and will be the sole responsible party for any breach of such
representations and warranties.
"HUD-Approved Servicer": A servicer that is a mortgagee approved
by the Secretary of Housing and Urban Development pursuant to Sections 207 and
211 of the National Housing Act.
"Independent": When used with respect to any specified Person,
any such Person who (i) is in fact independent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and any and
all Affiliates thereof, (ii) does not have any direct financial interest in or
any material indirect financial interest in any of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator or any
Affiliate thereof, and (iii) is not connected with the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator or any
Affiliate thereof as an officer, employee, promoter, placement agent, trustee,
partner, director or Person performing similar functions; provided, however, a
Person shall not fail to be Independent of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the REMIC Administrator or any Affiliate
thereof merely because such Person is the beneficial owner of 1% or less of any
Class of securities issued by the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator or any Affiliate thereof, as the
case may be; provided, further, such ownership constitutes less than 1% of the
total assets owned by such Person.
"Independent Contractor": Any Person that would be an
"independent contractor" with respect to REMIC I within the meaning of Section
856(d)(3) of the Code if REMIC I were a real estate investment trust (except
that the ownership test set forth in that section shall be considered to be met
by (i) any Person that owns, directly or indirectly, 35 percent or more of any
Class of Certificates, or such other interest in any Class of Certificates as is
set forth in an Opinion of Counsel, which shall not be an expense of the
Trustee, the REMIC Administrator or the Trust, delivered to the Trustee and the
REMIC Administrator), so long as REMIC I does not receive or derive any income
from such Person and provided that the relationship between such Person and
REMIC I is at arm's length, all within the meaning of Treasury Regulations
Section 1.856-4(b)(5), or (ii) any other Person upon receipt by the Trustee and
the REMIC Administrator of an Opinion of Counsel, which shall be at no expense
to the Trustee, the REMIC Administrator or the Trust, to the effect that the
taking of any action in respect of any REO Property by such Person, subject to
any conditions therein specified, that is otherwise herein contemplated to be
taken by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code, or cause any income realized in respect of such REO Property to fail
to qualify as Rents from Real Property.
"Initial Class XW Notional Amount": With respect to the Class XW
Certificates, the initial Class XW Notional Amount thereof as of the Closing
Date is equal to $3,515,654,613.
"Initial Class Principal Balance": With respect to any Class of
Sequential Pay Certificates and the Class A-2FL Regular Interest and Class A-MFL
Regular Interest, the initial Class Principal Balance thereof as of the Closing
Date, in each case as set forth in the Preliminary Statement hereto.
"Initial Pool Balance": The aggregate Cut-off Date Balance of all
the Mortgage Loans included in the Trust Fund as of the Closing Date.
"Initial Resolution Period": As defined in Section 2.03.
"Institutional Accredited Investor": As defined in Section
5.02(b).
"Insurance Policy": With respect to any Loan or REO Property, any
hazard insurance policy, seismic (earthquake) insurance policy, business
interruption insurance policy, flood insurance policy, title policy or other
insurance policy that is maintained from time to time in respect of such Loan
(or the related Mortgaged Property) or in respect of such REO Property, as the
case may be.
"Insurance Proceeds": Proceeds paid under any Insurance Policy,
to the extent such proceeds are not applied to the restoration of the related
Mortgaged Property or REO Property or released to the Mortgagor or any other
third party as permitted under the related loan documents, in either case, in
accordance with the Servicing Standard and with applicable law.
"Intercreditor Agreements": The ChampionsGate Hotel Intercreditor
Agreement, Hilton Anatole Intercreditor Agreement, JQH Hotel Portfolio
Intercreditor Agreement, Metropolis Shopping Center Intercreditor Agreement, One
Park Avenue Intercreditor Agreement, Pacifica Tower Intercreditor Agreement and
Xxxxxxxx Xxxx Portfolio Intercreditor Agreement.
"Interest Accrual Basis": The basis on which interest accrues in
respect of any Mortgage Loan, any REMIC I Regular Interest, any Class of REMIC
II Regular Certificates or the Class A-2FL Regular Interest or Class A-MFL
Regular Interest, consisting of one of the following: (i) a 30/360 Basis; or
(ii) an Actual/360 Basis.
"Interest Accrual Period": With respect to each Class of REMIC I
Regular Interests, each Class of REMIC II Regular Certificates and the Class
A-2FL Regular Interest and Class A-MFL Regular Interest for any Distribution
Date, is the calendar month immediately preceding the month in which such
Distribution Date occurs. With respect to the Class A-2FL and Class A-MFL
Certificates, interest shall be calculated on an Actual/360 Basis and, for any
Distribution Date, shall be deemed to accrue during the period from and
including the 10th calendar day of the month preceding the month in which the
related Distribution Date occurs (or, in the case of the first Distribution
Date, the Closing Date) to but excluding the 10th calendar day of the month in
which related Distribution Date occurs; provided, however, if a Class A-2FL
Distribution Conversion or Class A-MFL Distribution Conversion, as applicable,
has occurred, the Interest Accrual Period with respect to the Class A-2FL or
Class A-MFL Certificates, as applicable, shall be the same as the Interest
Accrual Period for the Class A-2FL Regular Interest or Class A-MFL Regular
Interest, as applicable.
"Interest Reserve Account": The segregated account or sub-account
of the Certificate Account created and maintained by the Master Servicer
pursuant to Section 4.05 in trust for the Certificateholders, which shall be
entitled "Bank of America, National Association, as Master Servicer, on behalf
of Xxxxx Fargo Bank, N.A., as Trustee, in trust for the registered holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-3, Interest Reserve Account".
"Investment Account": As defined in Section 3.06(a).
"Investment Grade Sequential Pay Certificates": The Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J and Class
K Certificates.
"Investment Representation Letter": As defined in Section
5.02(b).
"IRS": The Internal Revenue Service or any successor.
"JQH Hotel Portfolio Intercreditor Agreement": The A Notes
Intercreditor Agreement dated as of July 5, 2007 by and between the JQH Hotel
Portfolio Note A-1 Holder and the JQH Hotel Portfolio Note A-2 Holder relating
to the relative rights of such holders, as the same may be further amended from
time to time in accordance with the terms thereof.
"JQH Hotel Portfolio Note A-1": With respect to the JQH Hotel
Portfolio Pari Passu Mortgage Loan, the related Mortgage Note that is included
in the Trust Fund.
"JQH Hotel Portfolio Note A-1 Holder": The holder of the JQH
Hotel Portfolio Note A-1, initially Eurohypo AG, New York Branch.
"JQH Hotel Portfolio Note A-2": The Mortgage Note related to JQH
Hotel Portfolio Pari Passu Whole Loan that is not included in the Trust, which
is pari passu in right of payment to the JQH Hotel Portfolio Note A-1 as set
forth in the JQH Hotel Portfolio Intercreditor Agreement.
"JQH Hotel Portfolio Note A-2 Holder": The holder of the JQH
Hotel Portfolio Note A-2, which as of the date hereof is the X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Trust 2007-LDP11.
"JQH Hotel Portfolio Noteholders": The JQH Hotel Portfolio Note
A-1 Holder and JQH Hotel Portfolio Note A-2 Holder.
"JQH Hotel Portfolio Pari Passu Companion Loan": The loan
evidenced by the JQH Hotel Portfolio Note A-2.
"JQH Hotel Portfolio Pari Passu Companion Loan Holder": The
holder of the JQH Hotel Portfolio Pari Passu Companion Loan.
"JQH Hotel Portfolio Pari Passu Mortgage Loan": The Mortgage Loan
identified as Loan No. 200 in the Mortgage Loan Schedule, which, together with
the JQH Hotel Portfolio Note A-1, is secured by a Mortgage on the related
Mortgaged Properties.
"JQH Hotel Portfolio Pari Passu Whole Loan": The JQH Hotel
Portfolio Pari Passu Mortgage Loan together with the JQH Hotel Portfolio Pari
Passu Companion Loan. References herein to JQH Hotel Portfolio Pari Passu Whole
Loan shall be construed to refer to the aggregate indebtedness under the JQH
Hotel Portfolio Note A-1 and the JQH Hotel Portfolio Note A-2.
"Late Collections": With respect to any Serviced Loan, all
amounts received thereon during any Collection Period, whether as payments,
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise,
that represent late collections of the principal and/or interest portions of a
Monthly Payment (other than a Balloon Payment) or an Assumed Monthly Payment in
respect of such Serviced Loan due or deemed due, as the case may be, for a Due
Date in a previous Collection Period, or for a Due Date coinciding with or
preceding the Cut-off Date, and not previously received or recovered. With
respect to any REO Loan, all amounts received in connection with the related REO
Property during any Collection Period, whether as Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, that
represent late collections of the principal and/or interest portions of a
Monthly Payment (other than a Balloon Payment) or an Assumed Monthly Payment in
respect of the related Serviced Loan or of an Assumed Monthly Payment in respect
of such REO Loan due or deemed due, as the case may be, for a Due Date in a
previous Collection Period and not previously received or recovered.
"Letter of Credit": With respect to any Loan or Whole Loan, any
third-party letter of credit delivered by or at the direction of the Mortgagor
pursuant to the terms of such Loan in lieu of the establishment of, or deposit
otherwise required to be made into, a Reserve Fund.
"LIBOR": With respect to the Class A-2FL and Class A-MFL
Certificates and each Interest Accrual Period, the rate for deposits in U.S.
Dollars, for a period equal to one month, which appears on the Reuters Screen
LIBOR01 Page as of 11:00 a.m., London time, on the related LIBOR Determination
Date. If such rate does not appear on Reuters Screen LIBOR01 Page, the rate for
that Interest Accrual Period shall be determined on the basis of the rates at
which deposits in U.S. Dollars are offered by any four major reference banks in
the London interbank market selected by the Trustee to provide such bank's
offered quotation of such rates at approximately 11:00 a.m., London time, on the
related LIBOR Determination Date to prime banks in the London interbank market
for a period of one month, commencing on the first day of such Interest Accrual
Period and in an amount that is representative for a single such transaction in
the relevant market at the relevant time. The Trustee shall request the
principal London office of any four major reference banks in the London
interbank market selected by the Trustee to provide a quotation of such rates,
as offered by each such bank. If at least two such quotations are provided, the
rate for that Interest Accrual Period shall be the arithmetic mean of the
quotations. If fewer than two quotations are provided as requested, the rate for
that Interest Accrual Period shall be the arithmetic mean of the rates quoted by
major banks in New York City selected by the Trustee, at approximately 11:00
a.m., New York City time, on the LIBOR Determination Date with respect to such
Interest Accrual Period for loans in U.S. Dollars to leading European banks for
a period equal to one month, commencing on the first day of the related Interest
Accrual Period with respect to such Interest Accrual Period and in an amount
that is representative for a single such transaction in the relevant market at
the relevant time. The Trustee shall determine LIBOR for each Interest Accrual
Period and the determination of LIBOR by Trustee shall be binding absent
manifest error. For the avoidance of doubt, unless such Swap Counterparty has
been terminated pursuant to the related Swap Contract, the related Swap
Counterparty shall perform all such LIBOR calculations on behalf of the Trustee.
"LIBOR Business Day": Any day on which commercial banks are open
for international business (including dealings in U.S. Dollar deposits) in
London, England.
"LIBOR Determination Date": (i) with respect to the initial
Interest Accrual Period, the date that is two LIBOR Business Days prior to the
Closing Date, and (ii) with respect to each Interest Accrual Period thereafter,
the date that is two LIBOR Business Days prior to the beginning of the related
Interest Accrual Period.
"Liquidation Event": With respect to any Serviced Loan, any of
the following events: (i) such Serviced Loan is paid in full; (ii) a Final
Recovery Determination is made with respect to such Serviced Loan; (iii) the
related Mortgage Loan (or related REO Loan) is repurchased by the related
Mortgage Loan Seller pursuant to Section 4 of the Mortgage Loan Purchase
Agreement; (iv) the related Mortgage Loan is purchased by the Directing
Certificateholder, the Special Servicer, the related Controlling Holder (if the
Defaulted Serviced Loan is an A/B Mortgage Loan included in the related A/B
Whole Loan) or an assignee of such Person pursuant to Section 3.18(c) or the
related Mezzanine Loan Holder (if the related Defaulted Serviced Loan has a
related Mezzanine Loan) pursuant to any Mezzanine Intercreditor Agreement; (v)
such Loan is purchased by the Special Servicer or the Master Servicer pursuant
to Section 9.01; or (vi) in the case of an A/B Whole Loan, such A/B Whole Loan
is purchased by the related A/B Whole Loan Purchase Option Holder or its
designee pursuant to the related Intercreditor Agreement. With respect to any
REO Property (and the related REO Loan), any of the following events: (i) a
Final Recovery Determination is made with respect to such REO Property or (ii)
such REO Property is purchased by the Master Servicer or the Special Servicer
pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary
"out-of-pocket" costs and expenses due and owing (but not otherwise covered by
Servicing Advances) in connection with the liquidation of any Specially Serviced
Loan or REO Property (other than any REO Property related to a Non-Serviced
Loan) pursuant to Section 3.09 or Section 3.18 (including, without limitation,
legal fees and expenses, committee or referee fees and, if applicable, brokerage
commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced Loan
or REO Property (other than any REO Property related to a Non-Serviced Loan),
the fee designated as such and payable to the Special Servicer pursuant to the
third paragraph of Section 3.11(c). Notwithstanding the foregoing and for the
avoidance of doubt, no Liquidation Fee shall be payable in connection with (a)
the purchase of a Defaulted Serviced Loan by the Majority Certificateholder of
the Controlling Class pursuant to any applicable purchase right set forth in
Section 3.18(c) or Section 3.18(l) or with respect to a purchase of a related
Defaulted Serviced Loan at its fair value as determined in Section 3.18, unless
such purchase is by an assignee of the Majority Certificateholder of the
Controlling Class or the Special Servicer, such assignee is not an affiliate of
the Majority Certificateholder of the Controlling Class or the Special Servicer,
such assignment is for no material consideration, and provided such purchase
occurs or purchase right is exercised more than 90 days from the date that the
Special Servicer has initially determined the fair value of the related Mortgage
Loan; (b) the purchase of any Mortgage Loan by the holder of a subordinate note
or a Mezzanine Loan (or its designee) pursuant to a purchase option contained in
the related intercreditor agreement, unless such purchase occurs or purchase
right is exercised more than 90 days from the date that the Special Servicer has
initially determined the fair value of the related Mortgage Loan; (c) the
purchase option of the Majority Certificateholder of the Controlling Class, the
Master Servicer or the Special Servicer pursuant to Section 9.01; (d) the
repurchase by the related Mortgage Loan Seller of a Mortgage Loan so required to
be repurchased by it pursuant to Section 4 of the related Mortgage Loan Purchase
and Sale Agreement and Section 2.03 within the time frame set forth in the
Initial Resolution Period and/or the Resolution Extension Period (if
applicable); or (e) in connection with a Loss of Value Payment by the related
Mortgage Loan Seller.
"Liquidation Fee Rate": With respect to each Specially Serviced
Loan or REO Property as to which a Liquidation Fee is payable, 1.0% (100 basis
points).
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds, Condemnation Proceeds and REO Revenues) received by the Master
Servicer or the Special Servicer in connection with: (i) the liquidation of a
Mortgaged Property or other collateral constituting security for a Defaulted
Serviced Loan through trustee's sale, foreclosure sale, REO Disposition or
otherwise, exclusive of any portion thereof required to be released to the
related Mortgagor in accordance with applicable law and/or the terms and
conditions of the related loan documents; (ii) the realization upon any
deficiency judgment obtained against a Mortgagor; (iii) (A) the purchase of a
Defaulted Serviced Loan by any Controlling Class Certificateholder(s) pursuant
to Section 3.18(c), (B) by the Special Servicer pursuant to Section 3.18(c), (C)
with respect to a Non-Serviced Companion Loan, the purchase thereof by the
parties specified in the related Non-Serviced Loan Pooling Agreement pursuant to
a similar provision, (D) with respect to a Securitized Companion Loan (included
in a Serviced Whole Loan), the purchase thereof by the parties specified in the
related Securitized Companion Loan Pooling Agreement pursuant to a similar
provision, (E) by any A/B Whole Loan Purchase Option Holder pursuant to the
related Intercreditor Agreement or (F) by the related Mezzanine Loan Holder
pursuant to the related Mezzanine Intercreditor Agreement; (iv) (1) the
repurchase of a Mortgage Loan by the related Mortgage Loan Seller pursuant to
the related Mortgage Loan Purchase and Sale Agreement, (2) with respect to a
Non-Serviced Mortgage Loan, by the seller thereof pursuant to the Non-Serviced
Loan Pooling Agreement or related mortgage loan purchase agreement or (3) with
respect to a Securitized Companion Loan (included in a Serviced Whole Loan), the
repurchase thereof by the seller thereof pursuant to the Securitized Companion
Loan Pooling Agreement or related mortgage loan purchase agreement; (v) the
substitution of one or more Replacement Mortgage Loans for a Deleted Mortgage
Loan by the related Mortgage Loan Seller pursuant to the related Mortgage Loan
Purchase and Sale Agreement (such cash amounts being any Substitution Shortfall
Amounts); (vi) the purchase of a Mortgage Loan or REO Property by the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder(s)
pursuant to Section 9.01; or (vii) except for purposes of Section 3.11(c), the
transfer of any Loss of Value Payments from the Loss of Value Reserve Fund to
the Certificate Account.
"Loan": Any Mortgage Loan, Whole Loan or Companion Loan.
"Loan Group": Together, Loan Group 1 and Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans that are
Group 1 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Loan Group 1.
"Loan Group 2": Collectively, all of the Mortgage Loans that are
Group 2 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Loan Group 2.
"Lock-Box Account": With respect to any Lock-Box Agreement, the
account(s) established pursuant to the terms of such agreement.
"Lock-Box Agreement": With respect to any Loan, the lock-box
agreement, if any, between the related originator and the Borrower, pursuant to
which an account created pursuant to the related loan documents to receive
revenues therefrom, if any, may have been established.
"Loss of Value Payment": As defined in Section 2.03(i).
"Loss of Value Reserve Fund": The "outside reserve fund" (within
the meaning of Treasury Regulations Section 1.860G-2(h)) designated as such
pursuant to Section 2.12. The Loss of Value Reserve Fund will be part of the
Trust, but not part of any Grantor Trust, REMIC I or REMIC II.
"MAI": Member of the Appraisal Institute.
"Majority Certificateholder": With respect to any specified Class
or Classes of Certificates, as of any date of determination, any Holder or
particular group of Holders of Certificates of such Class or Classes, as the
case may be, entitled to a majority of the Voting Rights allocated to such Class
or Classes, as the case may be.
"Master Servicer": Bank of America, National Association, its
successor in interest or any successor master servicer appointed as herein
provided.
"Master Servicer Remittance Amount": With respect to any Master
Servicer Remittance Date, an amount equal to (a) all amounts on deposit in the
Certificate Account as of the commencement of business on such Master Servicer
Remittance Date, net of (b) any portion of the amounts described in clause (a)
of this definition that represents one or more of the following: (i) collected
Monthly Payments that are due on a Due Date following the end of the related
Collection Period, (ii) any unscheduled payments of principal (including,
without limitation, Principal Prepayments) and interest, Liquidation Proceeds
and Insurance Proceeds received after the end of the related Collection Period,
(iii) any Prepayment Premiums received after the end of the related Collection
Period, (iv) any amounts payable or reimbursable to any Person from the
Certificate Account pursuant to any of clauses (ii) through (xvii) of Section
3.05(a), (v) any Excess Liquidation Proceeds, (vi) any amounts deposited into
the Certificate Account in error, and (vii) with respect to each Mortgage Loan
that accrues interest on an Actual/360 Basis and any Distribution Date relating
to the one-month period preceding the Distribution Date in each February (and in
any January of a year that is not a leap year), an amount equal to the related
Withheld Amount pursuant to Section 4.05; provided that, with respect to the
Master Servicer Remittance Date that occurs in the same calendar month as the
Final Distribution Date, the Master Servicer Remittance Amount will be
calculated without regard to clauses (b)(i), (b)(ii) and (b)(iii) of this
definition; provided, further, in no event shall any amounts be included in the
Master Servicer Remittance Amount to the extent that such amounts are payable to
any Companion Loan Holder pursuant to the related Intercreditor Agreement.
"Master Servicer Remittance Date": The Business Day immediately
preceding each Distribution Date.
"Master Servicing Fee": With respect to each Loan and REO Loan,
the fee payable to the Master Servicer pursuant to Section 3.11(a) and from
which any Primary Servicing Fee is payable (and, (i) in the case of the
ChampionsGate Hotel Pari Passu Mortgage Loan, without duplication of the "Master
Servicing Fee" payable in respect of the ChampionsGate Hotel Pari Passu Whole
Loan under the ChampionsGate Hotel Pooling Agreement and (ii) in the case of the
One Park Avenue Pari Passu Mortgage Loan, without duplication of the "Master
Servicing Fee" payable in respect of the One Park Avenue Whole Loan under the
One Park Avenue Pooling Agreement).
"Master Servicing Fee Rate": With respect to (a) each Mortgage
Loan and any related REO Loan, the Administrative Fee Rate specified for each
such Mortgage Loan on the Mortgage Loan Schedule minus the Trustee Fee Rate and
(b) with respect to any Companion Loan and any related REO Loan, the Master
Servicing Fee Rate shall be the same as the Master Servicing Fee Rate for the
related Mortgage Loan.
"Material Breach": A Breach that materially and adversely affects
the interests of the Certificateholders, or any of them, with respect to the
affected Mortgage Loan, including but not limited to a material and adverse
effect on any of the distributions payable with respect to any of the
Certificates or on the value of such Certificates or such Mortgage Loan.
"Material Document Defect": A Document Defect that materially and
adversely affects the interests of the Certificateholders, or any of them, with
respect to the affected Mortgage Loan, including but not limited to a material
and adverse effect on any of the distributions payable with respect to any of
the Certificates or on the value of such Certificates or such Mortgage Loan.
"MERS": Mortgage Electronic Registration Systems, Inc.
"Metropolis Shopping Center A/B Mortgage Loan": The Mortgage Loan
identified as Loan No. 102 in the Mortgage Loan Schedule, which, together with
the Metropolis Shopping Center Note A, is secured by a Mortgage on the
Metropolis Shopping Center Mortgaged Property.
"Metropolis Shopping Center A/B Whole Loan": The Metropolis
Shopping Center A/B Mortgage Loan together with the Metropolis Shopping Center
A/B Companion Loan. References herein to the Metropolis Shopping Center A/B
Whole Loan shall be construed to refer to the aggregate indebtedness under the
Metropolis Shopping Center Note A and the Metropolis Shopping Center Note B.
"Metropolis Shopping Center A/B Whole Loan Purchase Option": As
defined in Section 3.18(l).
"Metropolis Shopping Center A/B Whole Loan Purchase Option": As
defined in Section 3.18(l).
"Metropolis Shopping Center Companion Loan": The loan evidenced
by the Metropolis Shopping Center Note B, which is not an asset of the Trust
Fund.
"Metropolis Shopping Center Companion Loan Holder": The holder of
the Metropolis Shopping Center A/B Companion Loan.
"Metropolis Shopping Center Control Appraisal Period": The
meaning assigned to "Control Appraisal Event" in the Metropolis Shopping Center
Intercreditor Agreement.
"Metropolis Shopping Center Intercreditor Agreement": The
Co-Lender Agreement dated as of June 5, 2007 and between the Metropolis Shopping
Center Note A Holder and the Metropolis Shopping Center Note B Holder relating
to the relative rights of such holders, as the same may be further amended from
time to time in accordance with the terms thereof.
"Metropolis Shopping Center Mortgaged Property": The property
that secures the Metropolis Shopping Center A/B Whole Loan.
"Metropolis Shopping Center Note A": With respect to the
Metropolis Shopping Center A/B Mortgage Loan, the related Mortgage Note that is
included in the Trust Fund.
"Metropolis Shopping Center Note A Holder": The holder of the
Metropolis Shopping Center Note A, initially Hypo Real Estate Capital
Corporation (or an affiliate thereof).
"Metropolis Shopping Center Note B": The Mortgage Note related to
the Metropolis Shopping Center Companion Loan that is not included in the Trust,
which is subordinated in right of payment to the Metropolis Shopping Center Note
A to the extent set forth in the Metropolis Shopping Center Intercreditor
Agreement.
"Metropolis Shopping Center Note B Holder": The holder of the
Metropolis Shopping Center Note B, initially Hypo Real Estate Capital
Corporation (or an affiliate thereof).
"Metropolis Shopping Center Noteholders": The Metropolis Shopping
Center Note A Holder and Metropolis Shopping Center Note B Holder.
"Metropolis Shopping Center Noteholders": The holder of the
Mortgage Note for the Metropolis Shopping Center A/B Mortgage Loan and the
Metropolis Shopping Center Note B Holder.
"Mezzanine Intercreditor Agreement": With respect to each
applicable Mezzanine Loan, the related intercreditor agreement and, with respect
to any Mortgage Loan with permitted future mezzanine indebtedness, the mezzanine
intercreditor agreement related to such future mezzanine loan.
"Mezzanine Loan": Collectively, the mezzanine loan related to the
mezzanine loan related to the Nantucket Creek Mortgage Loan (Loan No. 700), the
One Park Avenue Pari Passu Mortgage Loan (Loan No. 3405209) and the mezzanine
loan related to the Xxxxxxxx Xxxx Multifamily Portfolio Pari Passu Mortgage Loan
(Loan No. 104) (each such Mortgage Loan name and number as set forth in the
Mortgage Loan Schedule attached hereto as Schedule I) and, with respect to any
Mortgage Loan with permitted future mezzanine indebtedness, such future
mezzanine loan.
"Mezzanine Loan Holder": With respect to each Mezzanine Loan, the
related holder of such Mezzanine Loan and, with respect to any Mortgage Loan
with permitted future mezzanine indebtedness, the mezzanine lender under such
future mezzanine loan.
"Modified Serviced Loan": Any Serviced Loan as to which any
Servicing Transfer Event has occurred and that has been modified by the Special
Servicer pursuant to Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing current
Monthly Payments with respect to such Serviced Loan);
(b) except as expressly contemplated by the related loan
documents, results in a release of the lien of the Mortgage on any
material portion of the related Mortgaged Property without a
corresponding Principal Prepayment in an amount or the delivery of
substitute real property collateral with a fair market value (as is) that
is not less than the fair market value (as is), as determined by an
Appraisal delivered to the Special Servicer (at the expense of the
related Mortgagor and upon which the Special Servicer may conclusively
rely), of the property to be released; or
(c) in the good faith and reasonable judgment of the Special
Servicer, otherwise materially impairs the security for such Serviced
Loan or reduces the likelihood of timely payment of amounts due thereon.
"Monthly Payment": With respect to any Loan, for any Due Date as
of which such Loan is outstanding, the scheduled monthly payment of principal
and/or interest on such Loan, including, without limitation, a Balloon Payment,
that is actually payable by the related Mortgagor from time to time under the
terms of the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Loan granted or agreed
to by the Master Servicer or Special Servicer pursuant to Section 3.20 and
applicable law).
"Moody's": Xxxxx'x Investors Service, Inc. or its successor in
interest. If neither Moody's nor any successor remains in existence, "Moody's"
shall be deemed to refer to such other nationally recognized statistical rating
agency or other comparable Person designated by the Depositor, notice of which
designation shall be given to the Trustee, the Master Servicer, the Special
Servicer and the REMIC Administrator, and specific ratings of Moody's herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated.
"Mortgage": With respect to any Loan, separately and
collectively, as the context may require, each mortgage, deed of trust and/or
other similar document or instrument (together with any rider, addendum or
amendment thereto) securing the related Mortgage Note and creating a lien on the
related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan, subject to
Section 1.04 and Section 2.01, collectively the following documents:
(i) (A) the original executed Mortgage Note, endorsed
(either on the face thereof or pursuant to a separate allonge)
"Pay to the order of Xxxxx Fargo Bank, N.A., as Trustee, in trust
for the registered holders of Banc of America Commercial Mortgage
Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-3, without recourse" or in blank, and further showing a
complete, unbroken chain of endorsement from the originator (if
such originator is other than the related Mortgage Loan Seller);
or alternatively, if the original executed Mortgage Note has been
lost, a lost note affidavit and indemnity from the related
Mortgage Loan Seller with a copy of such Mortgage Note, and (B)
in the case of each Companion Loan, a copy of the related
executed Mortgage Note;
(ii) an original or a copy of the Mortgage and any
intervening assignments that precede the assignment referred to
in clause (iv) of this definition, in each case (unless the
particular item has not been returned from the applicable
recording office) with evidence of recording indicated thereon;
(iii) an original or a copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage)
and of any intervening assignments thereof that precede the
assignment referred to in clause (v) of this definition, in each
case (unless the particular item has not been returned from the
applicable recording office) with evidence of recording indicated
thereon;
(iv) subject to the provisos at the end of this paragraph,
(A) for all Mortgage Loans, an original executed assignment of
the Mortgage in favor of "Xxxxx Fargo Bank, N.A., as Trustee, in
trust for the registered holders of Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-3" or in blank, in recordable form (except for any
missing recording information with respect to such Mortgage) and
(B) in the case of each Serviced Whole Loan, an original executed
assignment of the Mortgage also to Xxxxx Fargo Bank, N.A. in its
capacity as "lead lender" on behalf of the related Companion Loan
Holder, provided that, if the related Mortgage has not been
returned from the applicable public recording office, such
assignment of Mortgage may exclude the information to be provided
by the recording office, and provided, further, if the related
Mortgage has been recorded in the name of Mortgage Electronic
Registration Systems, Inc. ("MERS") or its designee, no
assignment of Mortgage in favor of the Trustee will be required
to be prepared or delivered and instead, the Master Servicer
shall take all actions as are necessary to cause the Trustee to
be shown as, and the Trustee shall take all actions necessary to
confirm that it is shown as, the owner of the related Mortgage on
the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by
MERS;
(v) an original executed assignment of any related
Assignment of Leases (if such item is a document separate from
the Mortgage), in favor of "Xxxxx Fargo Bank, N.A., as Trustee,
in trust for the registered holders of Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-3" or in blank, in recordable form (except for any
missing recording information with respect to such Assignment of
Leases) and in the case of each Serviced Whole Loan, also to
Xxxxx Fargo Bank, N.A. in its capacity as "lead lender" or on
behalf of the related Companion Loan Holder, provided that if the
related Mortgage has been recorded in the name of MERS or its
designee, no assignment of Assignment of Leases in favor of the
Trustee will be required to be prepared or delivered and instead,
the Master Servicer shall take all actions as are necessary to
cause the Trustee to be shown as, and the Trustee shall take all
actions necessary to confirm that it is shown as, the owner of
the related Mortgage on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of
mortgages maintained by MERS;
(vi) originals or copies of any written assumption,
modification, written assurance and substitution agreements in
those instances where the terms or provisions of the Mortgage or
Mortgage Note have been modified or the Mortgage Loan has been
assumed, in each case (unless the particular item has not been
returned from the applicable recording office) with evidence of
recording indicated thereon if the instrument being modified or
assumed is a recordable document;
(vii) the original or a copy of the policy of lender's
title insurance or, if such policy has not yet been issued, a
"marked-up" pro forma title policy or commitment for title
insurance marked as binding and countersigned by the issuer or
its authorized agent either on its face or by an acknowledged
closing instruction or escrow letter;
(viii) filed copies of any prior UCC Financing Statements
in favor of the originator of such Mortgage Loan or in favor of
any assignee prior to the Trustee (but only to the extent the
related Mortgage Loan Seller had possession of such UCC Financing
Statements prior to the Closing Date) and, in connection with
such UCC Financing Statements, an original UCC-2 or UCC-3, as
appropriate, in favor of "Xxxxx Fargo Bank, N.A., as Trustee, in
trust for the registered holders of Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-3" or in blank, in a form that is complete and
suitable for filing or recording, and sufficient to assign to the
Trustee the security interest held by the originator of the
Mortgage Loan or its assignee; provided, if the related Mortgage
Loan has been recorded in the name of MERS or its designee, no
UCC Financing Statement in favor of the Trustee will be required
to be prepared or delivered and instead, the Master Servicer
shall take all actions as are necessary to cause the Trustee, on
behalf of the Certificateholders, to be shown as, and the Trustee
shall take all actions necessary to confirm that it is shown as,
the owner of the related Mortgage on the records of MERS for
purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS;
(ix) the original or a copy of any environmental indemnity
agreement relating solely to such Mortgage Loan;
(x) the original or a copy of any power of attorney,
guaranty, loan agreement, Ground Lease and/or Ground Lease
estoppels relating to such Mortgage Loan;
(xi) any original documents (including any security
agreement(s)) relating to, evidencing or constituting Additional
Collateral and, if applicable, the originals or copies of any
intervening assignments thereof;
(xii) the original or a copy of any intercreditor
agreement, co-lender agreement, agreement among noteholders or
similar agreement relating to such Mortgage Loan and a copy of
any Letter of Credit;
(xiii) with respect to any Companion Loan, a copy of the
related Note;
(xiv) with respect to hospitality properties, a copy of
the franchise agreement, an original copy of the comfort letter
and any transfer documents with respect to such comfort letter,
if any;
(xv) a copy of the ChampionsGate Hotel Pooling Agreement
and the One Park Avenue Pooling Agreement; and
(xvi) a list attached to each Mortgage File indicating the
documents to be included in each such Mortgage File (the
"Mortgage Loan Checklist") which list may be modified within 180
days by the related Mortgage Loan Seller after the Closing Date
to correct any errors in accordance with Section 2.02(e);
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf such term shall
not be deemed to include such documents and instruments required to be included
therein unless they are actually so received; provided, further, however, on the
Closing Date, with respect to item (iv), the Depositor has delivered to the
Trustee a copy of such assignment of Mortgage in blank and has caused the Master
Servicer to retain the completed assignment of Mortgage for recording as
described below, unless such Mortgage has been recorded in the name of MERS or
its designee.
For the avoidance of doubt, with respect to the ChampionsGate
Hotel Pari Passu Mortgage Loan, the preceding document delivery requirements
shall be deemed to be met by the delivery by the related Mortgage Loan Seller of
copies of the documents specified above (other than the ChampionsGate Hotel Pari
Passu Note A-2 (and all intervening endorsements), with respect to which the
originals shall be required), including a copy of the related Mortgage.
For the avoidance of doubt, with respect to the One Park Avenue Pari
Passu Mortgage Loan, the preceding document delivery requirements shall be
deemed to be met by the delivery by the related Mortgage Loan Seller of copies
of the documents specified above (other than the One Park Avenue Pari Passu Note
A-2 (and all intervening endorsements), with respect to which the originals
shall be required), including a copy of the related Mortgage.
"Mortgage Loan": Each of the mortgage loans transferred and
assigned to the Trustee pursuant to Section 2.01 and from time to time held in
the Trust Fund. As used herein, the term "Mortgage Loan" includes the related
Mortgage Note, Mortgage and other security documents contained in the related
Mortgage File.
"Mortgage Loan Checklist": As defined in the definition of
Mortgage File.
"Mortgage Loan Purchase and Sale Agreement": Each of the mortgage
loan purchase and sale agreements dated as of July 1, 2007: (A) between Bank of
America and the Depositor; (B) between Eurohypo and the Depositor; (C) among
HRECC, Hypo Public Finance USA, Inc. and the Depositor; and (D) between SunTrust
Bank and the Depositor.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred
on the Closing Date to the Trustee as part of the Trust Fund, which list is
attached hereto as Schedule I and may be amended from time to time in accordance
with Section 2.03(f). The Mortgage Loan Schedule shall set forth, among other
things, the following information with respect to each Mortgage Loan:
(i) the loan number and control number;
(ii) the street address or addresses (including city,
state and zip code) of the related Mortgaged Property.
(iii) (a) the Mortgage Rate in effect as of the Cut-off
Date and (b) whether the Mortgage Loan accrues interest on the
basis of the actual number of days elapsed in the relevant month
of accrual and a 360-day year (an "Actual/360 Basis") or on the
basis of a 360-day year consisting of twelve 30-day months (a
"30/360 Basis");
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity and (B)
Stated Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first
Due Date following the Cut-off Date (other than with respect to
Loans that are interest only for some (but not all) of their
respective loan terms then in such case the amortizing debt
service);
(ix) the Administrative Fee Rate (inclusive of the Master
Servicer Fee Rate, the Trustee Fee Rate, and the Primary
Servicing Fee Rate);
(x) the Primary Servicing Fee Rate;
(xi) the Master Servicing Fee Rate;
(xii) whether the Mortgagor's interest in the related
Mortgaged Property is or includes a Ground Lease;
(xiii) whether the Mortgage Loan is a Cross-Collateralized
Mortgage Loan and, if so, a reference to the other Mortgage Loans
that are cross collateralized with such Mortgage Loan;
(xiv) the original amortization term;
(xv) whether the Mortgage Loan is an ARD Loan;
(xvi) the applicable grace period; and
(xvii) the Loan Group to which such Mortgage Loan belongs.
The Mortgage Loan Schedule shall also set forth the aggregate
Cut-off Date Balance for all of the Mortgage Loans. Such list may be in the form
of more than one list, collectively setting forth all of the information
required.
"Mortgage Loan Sellers": Bank of America, Eurohypo, HRECC
(through its affiliate Hypo Public Finance USA, Inc.) and SunTrust Bank.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Loan, together with any rider, addendum or
amendment thereto.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any
successor REO Loans. The Mortgage Pool does not include any Companion Loan or
any successor REO Loan.
"Mortgage Rate": With respect to (i) any Loan on or prior to its
Stated Maturity Date, the annualized rate at which interest is scheduled (in the
absence of a default) to accrue on such Loan from time to time in accordance
with the terms of the related Mortgage Note (as such may be modified at any time
following the Closing Date) and applicable law, (ii) any Loan after its Stated
Maturity Date, the annualized rate described in clause (i) of this definition
determined without regard to the passage of such Stated Maturity Date, and (iii)
any REO Loan, the annualized rate described in clause (i) or (ii) of this
definition, as applicable, determined as if the related Loan had remained
outstanding.
"Mortgaged Property": Individually and collectively, as the
context may require, each real property (together with all improvements and
fixtures thereon) subject to the lien of a Mortgage and constituting collateral
for a Loan. With respect to any Cross-Collateralized Mortgage Loan, as the
context may require, "Mortgaged Property" may mean, collectively, all the
Mortgaged Properties securing such Cross-Collateralized Mortgage Loan.
"Mortgagor": The obligor or obligors on a Mortgage Note,
including without limitation, any Person that has acquired the related Mortgaged
Property and assumed the obligations of the original obligor under the Mortgage
Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to
any Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments during the related Collection Period, exceeds (b) the
amount of the Compensating Interest Payment remitted by the Master Servicer
pursuant to Section 3.19(e) on the Master Servicer Remittance Date related to
such Distribution Date.
"Net Assumption Application Fee": As defined in Section 3.08.
"Net Assumption Fee": As defined in Section 3.08.
"Net Cash Flow": With respect to any Mortgaged Property, the
total operating revenues derived from such Mortgaged Property, minus the total
fixed and variable operating expenses, capital expenditures such as reserves,
tenant improvements and leasing commissions, incurred in respect of such
Mortgaged Property (subject to adjustments for, among other things, (i) non cash
items such as depreciation and amortization, and (ii) debt service on loans
secured by the Mortgaged Property).
"Net Default Charges": With respect to any Serviced Loan or REO
Loan, the Default Charges referred to in clause sixth of Section 3.27(a) and
clause third of Section 3.27(c), which are payable to the Master Servicer as
Additional Master Servicing Compensation or the Special Servicer as Additional
Special Servicing Compensation.
"Net Investment Earnings": With respect to any Investment Account
for any Collection Period, the amount, if any, by which the aggregate of all
interest and other income realized during such Collection Period on funds held
in such Investment Account, exceeds the aggregate of all losses and investment
costs, if any, incurred during such Collection Period in connection with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any Investment Account for
any Collection Period, the amount by which the aggregate of all losses and
investment costs, if any, incurred during such Collection Period in connection
with the investment of funds held in such Investment Account in accordance with
Section 3.06, exceeds the aggregate of all interest and other income realized
during such Collection Period on such funds, but Net Investment Loss shall not
include any loss with respect to such investment that is incurred solely as a
result of the insolvency of the federally or state chartered depository
institution or trust company that holds such Investment Account so long as such
depository institution or trust company satisfied the qualifications set forth
in the definition of Eligible Account at the time such investment was made and
so long as such depository institution or trust company is not an Affiliate of
either the Master Servicer or the Special Servicer.
"Net Liquidation Proceeds": The excess, if any, of all
Liquidation Proceeds received with respect to any Specially Serviced Loan or REO
Property, over the amount of all Liquidation Expenses incurred with respect
thereto and all related Servicing Advances reimbursable therefrom.
"Net Modification Application Fee": As defined in Section
3.20(i).
"Net Modification Fee": As defined in Section 3.20(i).
"Net Mortgage Rate": With respect to any Loan or any related REO
Loan, as of any date of determination, a rate per annum equal to the related
Mortgage Rate then in effect minus the related Administrative Fee Rate, if
applicable. For purposes of calculating the Pass-Through Rate for each Class of
Certificates (other than the REMIC Residual Certificates) from time to time, the
Net Mortgage Rate for any Mortgage Loan will be calculated without regard to any
modification, waiver or amendment of the terms of such Mortgage Loan subsequent
to the Closing Date.
"Net Operating Income": With respect to any Mortgaged Property,
the total operating revenues derived from such Mortgaged Property for a
specified period, minus the total fixed and variable operating expenses incurred
in respect of such Mortgaged Property (subject to adjustments for, and
excluding, among other things: (i) non-cash items such as depreciation and
amortization, (ii) capital expenditures (inclusive of replacement reserves) and
(iii) debt service on loans secured by the Mortgaged Property).
"New Lease": Any lease of REO Property (other than any REO
Property related to a Non-Serviced Loan) entered into at the direction of the
Special Servicer on behalf of the Trust (and, in the case of a Serviced Whole
Loan, the related Companion Loan Holder, to the extent of its interest),
including any lease renewed, modified or extended on behalf of the Trust, if the
Trust has the right to renegotiate the terms of such lease.
"NMWHFIT": A "Non-Mortgage Widely Held Fixed Investment Trust" as
that term is defined in Treasury Regulations Section 1.671-5(b)(12) or successor
provisions.
"Non-Investment Grade Sequential Pay Certificates": The Class L,
Class M, Class N, Class O, Class P, Class Q and Class S Certificates.
"Non-Partitioned Loans": Each Mortgage Loan, other than any
Mortgage Loan related to an A/B Whole Loan.
"Non-Registered Certificate": Unless and until registered under
the Securities Act, any Class A-2FL, Class A-MFL, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q,
Class S, Class R-I and Class R-II Certificate.
"Non-Serviced Companion Loan": Each of the ChampionsGate Hotel
Pari Passu Companion Loan and the One Park Avenue Pari Passu Companion Loan.
"Non-Serviced Loan": Any Non-Serviced Companion Loan,
Non-Serviced Mortgage Loan or Non-Serviced Whole Loan.
"Non-Serviced Loan Master Servicer": With respect to the
Non-Serviced Mortgage Loan, the "master servicer" designated under the related
Non-Serviced Loan Pooling Agreement.
"Non-Serviced Loan Pooling Agreement": Each of the ChampionsGate
Hotel Pooling Agreement and the One Park Avenue Pooling Agreement.
"Non-Serviced Loan Special Servicer": With respect to any
Non-Serviced Mortgage Loan, the "special servicer" designated under the related
Non-Serviced Loan Pooling Agreement.
"Non-Serviced Loan Trustee": With respect to any Non-Serviced
Mortgage Loan, the "trustee" designated under the related Non-Serviced Loan
Pooling Agreement.
"Non-Serviced Mortgage Loan": The One Park Avenue Pari Passu
Mortgage Loan and the ChampionsGate Hotel Pari Passu Mortgage Loan.
"Non-Serviced Mortgage Loan Primary Servicing Fee": With respect
to the Non-Serviced Mortgage Loan, the servicer fee applicable to such
Non-Serviced Mortgage Loan as provided in the related Non-Serviced Loan Pooling
Agreement.
"Non-Serviced Mortgage Loan Primary Servicing Fee Rate": The rate
at which the Non-Serviced Mortgage Loan Primary Servicing Fee accrues, as set
forth in the Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
"Non-Serviced Whole Loan": The ChampionsGate Hotel Pari Passu
Whole Loan and the One Park Avenue Pari Passu Whole Loan.
"Non-U.S. Person": Any person other than a U.S. Person.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": As evidenced by the Officer's
Certificate and supporting documentation contemplated by Section 4.03(c), any
P&I Advance previously made or to be made in respect of any Mortgage Loan or any
REO Loan that, as determined by the Master Servicer, the Special Servicer or, if
applicable, the Trustee, in its reasonable, good faith judgment, based on at
least an Appraisal conducted within the 12 months preceding any such
determination, will not be ultimately recoverable (together with Advance
Interest accrued thereon) from Default Charges, Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds or any other recovery on or in respect of such
Mortgage Loan; provided, however, the Special Servicer may, at its option, in
consultation with the Directing Certificateholder, make a determination in
accordance with the Servicing Standard, that any P&I Advance previously made or
proposed to be made is a Nonrecoverable P&I Advance and shall deliver to the
Master Servicer and the Trustee notice of such determination and any such
determination shall be conclusive and binding on the Master Servicer and the
Trustee.
"Nonrecoverable Servicing Advance": (a) Any Servicing Advance
made or proposed to be made in respect of a Serviced Loan or REO Property that,
as determined by the Master Servicer or, if applicable, the Special Servicer or
the Trustee in its reasonable and good faith judgment, will not be recoverable
(together with Advance Interest accrued thereon), or that in fact was not
ultimately recovered, from Default Charges, Insurance Proceeds, Liquidation
Proceeds or any other recovery on or in respect of such Serviced Loan or REO
Property (without giving effect to potential recoveries on deficiency judgments
or recoveries from guarantors); provided, however, the Special Servicer may, at
its option, make a determination in accordance with the Servicing Standard and
Section 3.11(h), that any Servicing Advance previously made or proposed to be
made is a Nonrecoverable Servicing Advance and shall deliver to the Master
Servicer and the Trustee notice of such determination and any such determination
shall be conclusive and binding on the Master Servicer and the Trustee; and (b)
any ChampionsGate Hotel Nonrecoverable Servicing Advance or any One Park Avenue
Nonrecoverable Servicing Advance (including interest thereon calculated in
accordance with the respective Non-Serviced Loan Pooling Agreement). The
determination as to the recoverability of any servicing advance previously made
or proposed to be made in respect of the ChampionsGate Hotel Pari Passu Mortgage
Loan shall be made by the ChampionsGate Hotel Master Servicer, the ChampionsGate
Hotel Special Servicer or the ChampionsGate Hotel Trustee, as the case may be,
pursuant to the ChampionsGate Hotel Pooling Agreement. Any such determination
made by the ChampionsGate Hotel Master Servicer, the ChampionsGate Hotel Special
Servicer or the ChampionsGate Hotel Trustee, shall be conclusive and binding on
the Certificateholders. The determination as to the recoverability of any
servicing advance previously made or proposed to be made in respect of the One
Park Avenue Pari Passu Mortgage Loan shall be made by the One Park Avenue Master
Servicer, One Park Avenue Special Servicer or the One Park Avenue Trustee, as
the case may be, pursuant to the One Park Avenue Pooling Agreement. Any such
determination made by the One Park Avenue Master Servicer, One Park Avenue
Special Servicer or the One Park Avenue Trustee, shall be conclusive and binding
on the Certificateholders.
"Note B": Any of the Metropolis Shopping Center Note B and the
Pacifica Tower Note B.
"Note B Holder": Any holder of a Note B related to an A/B Whole
Loan.
"Officer's Certificate": A certificate signed by a Servicing
Officer of the Master Servicer, the Special Servicer or any Additional Servicer,
a Responsible Officer of the Trustee or any authorized officer of a Mortgage
Loan Seller, as the case may be.
"One Park Avenue Indemnified Parties": As defined in Section
6.03(c).
"One Park Avenue Intercreditor Agreement": The Intercreditor and
Servicing Agreement dated as of June 1, 2007 by and between the One Park Avenue
Note A-1 Holder and the One Park Avenue Note A-2 Holder relating to the relative
rights of such holders, as the same may be further amended from time to time in
accordance with the terms thereof.
"One Park Avenue Master Servicer": The master servicer under the
One Park Avenue Pooling Agreement, which as of the Closing Date is Bank of
America, National Association.
"One Park Avenue Nonrecoverable Servicing Advance": With respect
to the One Park Avenue Pari Passu Mortgage Loan, a "Nonrecoverable Servicing
Advance" as defined in the One Park Avenue Pooling Agreement.
"One Park Avenue Note A-1": With respect to the One Park Avenue
Pari Passu Mortgage Loan, the related Mortgage Note that is not included in the
Trust Fund and which is pari passu in right of payment to the One Park Avenue
Note A-2 as set forth in the One Park Avenue Intercreditor Agreement.
"One Park Avenue Note A-1 Holder": The holder of the One Park
Avenue Note A-1, initially Banc of America Commercial Mortgage Trust 2007-2.
"One Park Avenue Note A-2": The Mortgage Note related to One Park
Avenue Pari Passu Whole Loan that is included in the Trust, which is pari passu
in right of payment to the One Park Avenue Note A-1 as set forth in the One Park
Avenue Intercreditor Agreement.
"One Park Avenue Note A-2 Holder": The holder of the One Park
Avenue Note A-2, initially Bank of America, National Association.
"One Park Avenue Noteholders": The One Park Avenue Note A-1
Holder and One Park Avenue Note A-2 Holder.
"One Park Avenue Pari Passu Companion Loan": The loan evidenced
by the One Park Avenue Note A-1.
"One Park Avenue Pari Passu Companion Loan Holder": The holder of
the One Park Avenue Pari Passu Companion Loan.
"One Park Avenue Pari Passu Mortgage Loan": The Mortgage Loan
identified as Loan No. 3405209 in the Mortgage Loan Schedule, which, together
with the One Park Avenue Note A-1, is secured by a Mortgage on the related
Mortgaged Property.
"One Park Avenue Pari Passu Whole Loan": The One Park Avenue Pari
Passu Mortgage Loan together with the One Park Avenue Pari Passu Companion Loan.
References herein to One Park Avenue Pari Passu Whole Loan shall be construed to
refer to the aggregate indebtedness under the One Park Avenue Note A-1 and the
One Park Avenue Note A-2.
"One Park Avenue Pooling Agreement": That certain pooling and
servicing agreement dated as of June 1, 2007 among Banc of America Commercial
Mortgage Inc., as depositor, the One Park Avenue Master Servicer, as master
servicer, the One Park Avenue Special Servicer, as special servicer, and the One
Park Avenue Trustee, as trustee and REMIC administrator, which agreement relates
to the Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-2.
"One Park Avenue Special Servicer": The special servicer under
the One Park Avenue Pooling Agreement, which of as of the Closing Date is LNR
Partners, Inc.
"One Park Avenue Trustee": The trustee under the One Park Avenue
Pooling Agreement, which of as of the Closing Date is Xxxxx Fargo Bank, N.A.
"Opinion of Counsel": A written opinion of counsel (who must, in
connection with any opinion rendered pursuant hereto with respect to tax matters
or a resignation under Section 6.04, be Independent counsel, but who otherwise
may be salaried counsel for the Depositor, the Trustee, the REMIC Administrator,
the Master Servicer or the Special Servicer), which written opinion is
acceptable and delivered to the addressee(s).
"Option Holder": As defined in Section 3.18(c).
"Option Period": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Serviced Loan or REO Loan, any advance
made by the Master Servicer or the Trustee pursuant to Section 4.03.
"Pacifica Tower A/B Mortgage Loan": The Mortgage Loan identified
as Loan No. 3406563 in the Mortgage Loan Schedule, which, together with the
Pacifica Tower Note A, is secured by a Mortgage on the Pacifica Tower Mortgaged
Property.
"Pacifica Tower A/B Whole__Loan": The Pacifica Tower A/B Mortgage
Loan together with the Pacifica Tower A/B Companion Loan. References herein to
the Pacifica Tower A/B Whole Loan shall be construed to refer to the aggregate
indebtedness under the Pacifica Tower Note A and the Pacifica Tower Note B.
"Pacifica Tower A/B Whole Loan Purchase Option": As defined in
Section 3.18(l).
"Pacifica Tower A/B Whole Loan Purchase Option Holder": As
defined in Section 3.18(l).
"Pacifica Tower Companion Loan": The loan evidenced by the
Pacifica Tower Note B, which is not an asset of the Trust Fund.
"Pacifica Tower Companion Loan Holder": The holder of the
Pacifica Tower Companion Loan.
"Pacifica Tower Control Appraisal Period": The meaning assigned to
"Control Appraisal Period" in the Pacifica Tower Intercreditor Agreement.
"Pacifica Tower Controlling Holder": The meaning assigned to
"Controlling Holder" in the Pacifica Tower Intercreditor Agreement. The initial
Pacifica Tower Controlling Holder shall be set forth on Schedule VII hereto.
"Pacifica Tower Intercreditor Agreement": The Intercreditor
Agreement dated as of June 29, 2007 and between the Pacifica Tower Note A Holder
and the Pacifica Tower Note B Holder relating to the relative rights of such
holders, as the same may be further amended from time to time in accordance with
the terms thereof.
"Pacifica Tower Mortgaged Property": The property that secures
the Pacifica Tower A/B Whole Loan.
"Pacifica Tower Note A": With respect to the Pacifica Tower A/B
Mortgage Loan, the related Mortgage Note that is included in the Trust Fund.
"Pacifica Tower Note A Holder": The holder of the Pacifica Tower
Note A, initially Bank of America, National Association.
"Pacifica Tower Note B": The Mortgage Note related to the
Pacifica Tower A/B Companion Loan that is not included in the Trust, which is
subordinated in right of payment to the Pacifica Tower Note A to the extent set
forth in the Pacifica Tower Intercreditor Agreement.
"Pacifica Tower Note B Holder": The holder of the Pacifica Tower
Note B, initially Bank of America, National Association.
"Pacifica Tower Noteholders": The Pacifica Tower Note A Holder
and Pacifica Tower Note B Holder.
"Pari Passu Companion Loan": Each of the ChampionsGate Hotel Pari
Passu Companion Loan, Hilton Xxxxxxx Xxxx Passu Companion Loan, JQH Hotel
Portfolio Pari Passu Companion Loan, One Park Avenue Pari Passu Companion Loan
and Xxxxxxxx Xxxx Multifamily Portfolio Pari Passu Companion Loan, as
applicable.
"Pari Passu Mortgage Loan": Each of the ChampionsGate Hotel Pari
Passu Mortgage Loan, Hilton Xxxxxxx Xxxx Passu Mortgage Loan, JQH Hotel
Portfolio Pari Passu Mortgage Loan, One Park Avenue Pari Passu Mortgage Loan and
Xxxxxxxx Xxxx Multifamily Portfolio Pari Passu Mortgage Loan, as applicable.
"Pari Passu Whole Loan": Each of the ChampionsGate Hotel Pari
Passu Whole Loan, Hilton Xxxxxxx Xxxx Passu Whole Loan, JQH Hotel Portfolio Pari
Passu Whole Loan, One Park Avenue Pari Passu Whole Loan and Xxxxxxxx Xxxx
Multifamily Portfolio Pari Passu Whole Loan, as applicable.
"Pass-Through Rate": With respect to any Class of Sequential Pay
Certificates, Class A-2FL Certificates, Class A-2FL Regular Interest, Class
A-MFL Certificates and Class A-MFL Regular Interest, the rate per annum
specified as such in respect of such Class in the Preliminary Statement hereto.
With respect to the Class XW Certificates, for any Distribution Date, the Class
XW Pass-Through Rate.
"Past Grace Period Serviced Loan": With respect to any Master
Servicer Remittance Date, any Serviced Loan having any Monthly Payment remaining
unpaid past its Due Date and past any applicable grace period for such Monthly
Payment as of the Determination Date in the same calendar month.
"Payment Priority": With respect to any Class of Certificates,
the priority of the Holders thereof in respect of the Holders of the other
Classes of Certificates to receive distributions out of the Available
Distribution Amount for any Distribution Date. The Payment Priority of the
respective Classes of Certificates shall be, in descending order, as follows:
first, to the respective Classes of Senior Certificates (pro rata between the
Class A-2 Certificates and Class A-2FL Regular Interest); second, to the Class
A-M Certificates, the Class A-MF Certificates and the Class A-MFL Regular
Interest, pro rata; third, to the Class A-J Certificates; fourth, to the Class B
Certificates; fifth, to the Class C Certificates; sixth, to the Class D
Certificates; seventh, to the Class E Certificates; eighth, to the Class F
Certificates; ninth, to the Class G Certificates; tenth, to the Class H
Certificates; eleventh, to the Class J Certificates; twelfth, to the Class K
Certificates; thirteenth, to the Class L Certificates; fourteenth, to the Class
M Certificates; fifteenth, to the Class N Certificates; sixteenth, to the Class
O Certificates; seventeenth, to the Class P Certificates; eighteenth, to the
Class Q Certificates; nineteenth, to the Class S Certificates; and, last, to the
respective Classes of REMIC Residual Certificates.
"Percentage Interest": With respect to any Regular Certificate,
the portion of the relevant Class evidenced by such Certificate, expressed as a
percentage, the numerator of which is the Certificate Principal Balance or
Certificate Notional Amount, as the case may be, of such Certificate as of the
Closing Date, as specified on the face thereof, and the denominator of which is
the Initial Class Principal Balance or Initial Class Notional Amount, as the
case may be, of the relevant Class. With respect to a REMIC Residual
Certificate, the percentage interest in distributions to be made with respect to
the relevant Class, as stated on the face of such Certificate.
"Performance Certification": As defined in Section 11.06.
"Performing Party": As defined in Section 11.12.
"Performing Serviced Loan": As of any date of determination, any
Serviced Loan as to which no Servicing Transfer Event then exists.
"Permitted Investments": Any one or more of the following
obligations:
(a) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed
by the full faith and credit of the United States;
(b) repurchase obligations with respect to any security described
in clause (a) of this definition, provided that the long-term unsecured
debt obligations of the party agreeing to repurchase such obligations are
rated "AA+" by Fitch, "Aaa" by Moody's and "AAA" by S&P;
(c) federal funds, uncertificated certificates of deposit, time
deposits and bankers' acceptances (having original maturities of not more
than 365 days) of any bank or trust company organized under the laws of
the United States or any state, provided that the short-term unsecured
debt obligations of such bank or trust company are rated no less than
"F-1" by Fitch, "P-1" by Moody's and "A-1+" by S&P;
(d) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the United
States or any state thereof rated no less than "F-1" by Fitch, "P-1" by
Moody's, and "A-1+" by S&P;
(e) units of money market funds that maintain a constant asset
value and that are rated in the highest applicable rating category by
each of Fitch (or if not rated by Fitch a confirmation from Fitch that
such money market fund is acceptable), Moody's (or if not rated by
Moody's a confirmation from Moody's that such money market fund is
acceptable) and S&P (i.e., "AAAm" or "AAAmG") and;
(f) the Xxxxx Fargo Prime Investment Money Market Fund so long as
it is rated by each Rating Agency in its highest money market fund
ratings category (or, if not rated by Moody's or S&P, otherwise
acceptable to Moody's or S&P, as applicable, as confirmed in writing that
such investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then current ratings assigned to the
Certificates); and
(g) any other obligation or security that would not result in the
downgrade, qualification (if applicable) or withdrawal of the rating then
assigned by any of the Rating Agencies to any Class of Certificates or
Companion Loan Securities, evidence of which shall be confirmed in
writing by each Rating Agency to the Trustee;
provided that no investment described hereunder shall evidence either the right
to receive (a) only interest with respect to such investment or (b) a yield to
maturity greater than 120% of the yield to maturity at par of the underlying
obligations; and provided, further, no investment described hereunder may be
purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity; and
provided, further, each investment described hereunder shall, by its terms, have
a predetermined fixed amount of principal due at maturity (that cannot vary or
change) and either a fixed interest rate or variable interest rate tied to a
single interest rate index plus a single fixed spread; and provided, further,
each investment described hereunder shall be a "cash flow investment", as
defined in the REMIC Provisions; and provided, further, no investment described
hereunder shall have a maturity in excess of one year; and provided, further, no
investment described hereunder shall be liquidated prior to its maturity date;
and provided, further, no investment described hereunder may have an "r"
highlighter or other comparable qualifier attached to its rating.
"Permitted Mezzanine Loan Holder": With respect to the Mezzanine
Loans, any "qualified transferee" with respect to which each Rating Agency has
confirmed in writing that the holding of the related Mezzanine Loan by such
Person would not cause a qualification, downgrade or withdrawal of any of such
Rating Agency's then-current ratings on the Certificates or Companion Loan
Securities or that otherwise meets the qualifications set forth in the related
Mezzanine Intercreditor Agreement to be a "qualified transferee".
"Permitted Transferee": Any Transferee of a REMIC Residual
Certificate other than any of a Plan or a Person acting on behalf of or using
the assets of a Plan, a Disqualified Organization, a Disqualified Non-U.S.
Person, an entity treated as a U.S. partnership for federal income tax purposes
if any of its direct or indirect beneficial owners (other than through a U.S.
corporation) is (or is permitted to be under the related partnership agreement)
a Disqualified Non-U.S. Person or a U.S. Person with respect to whom income on a
REMIC Residual Certificate is attributable to a foreign permanent establishment
or fixed base, within the meaning of an applicable income tax treaty, of such
Person or any other U.S. Person or any nominee, agent or middleman of any of the
above.
"Person": Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or any agency or political subdivision
thereof.
"Phase I Environmental Assessment": A "Phase I assessment" or, in
the case of any Serviced Loan having an initial principal balance under
$1,000,000, a transaction screen, as described in, and meeting the criteria of,
the American Society of Testing Materials Standard Sections 1527-99 or any
successor thereto published by the American Society of Testing Materials.
"Placement Agent": Banc of America Securities LLC.
"Plan": As defined in Section 5.02(c).
"Pool REO Account": A segregated custodial account or accounts
created and maintained by the Special Servicer pursuant to Section 3.16(b) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "Midland Loan Services, Inc., as Special Servicer, for the benefit of
Xxxxx Fargo Bank, N.A., as Trustee, in trust for registered Holders of Banc of
America Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-3, REO Account". Any such account or accounts shall be an Eligible
Account.
"Post CAP A/B Whole Loan": Any A/B Whole Loan following the
occurrence and during the continuance of a related Control Appraisal Period.
"Prepayment Assumption": The assumption that no Mortgage Loan is
prepaid prior to its Stated Maturity Date, such assumption to be used for
determining the accrual of original issue discount, market discount and premium,
if any, on the Mortgage Loans, REMIC I Regular Interests, REMIC II Regular
Certificates, Class A-2FL Regular Interest and Class A-MFL Regular Interest for
federal income tax purposes.
"Prepayment Interest Excess": With respect to any Serviced Loan
that was subject to a Principal Prepayment in full or in part made on or prior
to the Determination Date in any calendar month but after such Serviced Loan's
Due Date, any payment of interest (net of related Master Servicing Fees and
exclusive of Prepayment Premiums) actually collected from the related Mortgagor
from and after such Due Date.
"Prepayment Interest Shortfall": With respect to any Serviced
Loan that was subject to a Principal Prepayment in full or in part made after
the Determination Date in any calendar month, the amount of uncollected interest
(determined without regard to any Prepayment Premium that may have been
collected) that would have accrued at a per annum rate equal to the sum of the
Net Mortgage Rate for such Serviced Loan plus the Trustee Fee Rate, on the
amount of such Principal Prepayment during the period commencing on the date as
of which such Principal Prepayment was applied to such Serviced Loan and ending
on the last day of such calendar month, inclusive.
"Prepayment Premium": Any premium, penalty or fee paid or
payable, as the context requires, by a Mortgagor in connection with a Principal
Prepayment on, or other early collection of principal of, a Loan or any
successor REO Loan.
"Primary Collateral": The Mortgaged Property directly securing a
Cross-Collateralized Mortgage Loan excluding, however, any Mortgaged Property as
to which the related lien may only be foreclosed upon solely because of the
cross-collateralization of such Mortgage Loans.
"Primary Servicing Fee": With respect to each Mortgage Loan that
is subject to a Sub-Servicing Agreement as of the Closing Date, the monthly fee
payable to the Sub-Servicer by the Master Servicer from the Master Servicing
Fee, which monthly fee accrues at the Primary Servicing Fee Rate.
"Primary Servicing Fee Rate": With respect to each Mortgage Loan
that is subject to a Sub-Servicing Agreement as of the Closing Date, the rate
per annum specified as such in the Mortgage Loan Schedule.
"Primary Servicing Office": With respect to the Master Servicer,
the office thereof primarily responsible for performing its respective duties
under this Agreement, initially located in Charlotte, North Carolina, and, with
respect to the Special Servicer, the office thereof primarily responsible for
performing its respective duties under this Agreement, initially located in
Kansas.
"Principal Distribution Amount": With respect to any Distribution
Date and in respect of any Mortgage Loan, the aggregate of the Current Principal
Distribution Amount for such Distribution Date and, if such Distribution Date is
subsequent to the initial Distribution Date, the excess, if any, of the
Principal Distribution Amount for the preceding Distribution Date, over the
aggregate distributions of principal made on the Sequential Pay Certificates,
Class A-2FL Regular Interest and Class A-MFL Regular Interest on the preceding
Distribution Date; provided that the Principal Distribution Amount for any
Distribution Date shall be reduced by the amount of any reimbursements of
Nonrecoverable Advances or Workout-Delayed Reimbursement Amounts plus interest
on such Nonrecoverable Advances or Workout-Delayed Reimbursement Amounts that
are paid or reimbursed from principal collections on the Mortgage Loans in a
period during which such principal collections would have otherwise been
included in the Principal Distribution Amount for such Distribution Date
(provided, that if any of the amounts that were reimbursed from principal
collections on the Mortgage Loans are subsequently recovered on the related
Mortgage Loan, such recovery will increase the Principal Distribution Amount for
the Distribution Date related to the period in which such recovery occurs).
"Principal Prepayment": Any voluntary payment of principal made
by the Mortgagor on a Loan that is received in advance of its scheduled Due Date
and that is not accompanied by an amount of interest (without regard to any
Prepayment Premium that may have been collected) representing scheduled interest
due on any date or dates in any month or months subsequent to the month of
prepayment.
"Prohibited Actions": As defined in Section 3.21(f).
"Prospectus Supplement": That certain prospectus supplement dated
July 18, 2007, relating to the Class A-1, Class A-2, Class A-3, Class A-AB,
Class A-4, Class A-5, Class A-1A, Class XW, Class A-M, Class A-MF, Class A-J,
Class B, Class C and Class D Certificates, that is a supplement to the Base
Prospectus.
"Purchase Option": As defined in Section 3.18(c).
"Purchase Price": With respect to any Mortgage Loan, a price
equal to the unpaid principal balance of the Mortgage Loan as of the date of
purchase, together with (a) all accrued and unpaid interest on the Mortgage Loan
at the related Mortgage Rate up to but not including the Due Date in the
Collection Period of purchase, (b) all related unreimbursed Master Servicing
Fees, Special Servicing Fees, Trustee Fees and Servicing Advances that are
unreimbursed from related collections on such Mortgage Loan (including, in the
case of a Non-Serviced Mortgage Loan, the pro rata portion, based on the related
Stated Principal Balance, of any servicing advance made pursuant to the related
Non-Serviced Loan Pooling Agreement that is allocable to such Non-Serviced
Mortgage Loan and unpaid fees payable to the Non-Serviced Loan Master Servicer
or the Non-Serviced Loan Special Servicer), (c) all accrued and unpaid Advance
Interest in respect of related Advances, (d) any Additional Trust Fund Expenses
in respect of such Mortgage Loan (including any Additional Trust Fund Expenses
previously reimbursed or paid by the Trust Fund but not so reimbursed by the
related Mortgagor or other party or from Insurance Proceeds or Condemnation
Proceeds or otherwise), (e) Liquidation Fees (if any) payable in connection with
a purchase of a Mortgage Loan and (f) any cost, fees and expenses of enforcement
(including attorneys fees) of a repurchase obligation pursuant to Section
2.03(h). With respect to any REO Property, a price equal to the unpaid principal
balance of the related REO Loan as of the date of purchase, together with (a)
all accrued and unpaid interest on such REO Loan at the related Mortgage Rate to
but not including the Due Date in the Collection Period of purchase, (b) all
related Master Servicing Fees, Special Servicing Fees, Trustee Fees and
Servicing Advances that are unreimbursed from related collections on such REO
Property, (c) all accrued and unpaid Advance Interest in respect of related
Advances, (d) any Additional Trust Fund Expenses in respect of such REO Property
(including any Additional Trust Fund Expenses previously reimbursed or paid by
the Trust Fund but not so reimbursed by the related Mortgagor or other party or
from Insurance Proceeds or Condemnation Proceeds or otherwise), (e) Liquidation
Fees (if any) payable in connection with a purchase of a Mortgage Loan and (f)
any cost, fees and expenses of enforcement (including attorneys fees) of a
repurchase obligation pursuant to Section 2.03. The Purchase Price of any
Mortgage Loan or REO Property is intended to include, without limitation,
principal and interest previously advanced with respect thereto and not
previously reimbursed.
"Qualified Appraiser": In connection with the appraisal of any
Loan, Mortgaged Property or REO Property, an Independent MAI-designated
appraiser with at least five years of experience in respect of the relevant
geographic location and property type.
"Qualified Bidder": As defined in Section 7.01(d).
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualifying Substitute Mortgage Loan": In connection with the
replacement of a Defective Mortgage Loan as contemplated by Section 2.03, any
other mortgage loan that, on the date of substitution, (i) has a principal
balance, after deduction of the principal portion of any unpaid Monthly Payment
due on or before the date of substitution, not in excess of the Stated Principal
Balance of the Defective Mortgage Loan; (ii) is accruing interest at a fixed
rate of interest at least equal to that of the Defective Mortgage Loan; (iii)
has the same Due Date as, and a grace period for delinquent Monthly Payments
that is no longer than, the Due Date and grace period, respectively, of the
Defective Mortgage Loan; (iv) is accruing interest on the same basis as the
Defective Mortgage Loan (for example, on the basis of a 360-day year consisting
of twelve 30-day months); (v) has a remaining term to stated maturity not
greater than, and not more than two years less than, that of the Defective
Mortgage Loan and, in any event, has a maturity date not later than two years
prior to the Rated Final Distribution Date; (vi) has a then current
loan-to-value ratio not higher than, and a then current debt service coverage
ratio not lower than, the loan-to-value ratio and debt service coverage ratio,
respectively, of the Defective Mortgage Loan as of the Closing Date; (vii) has
comparable prepayment restrictions to those of the Defective Mortgage Loan,
(viii) will comply (except in a manner that would not be adverse to the
interests of the Certificateholders (as a collective whole) in or with respect
to such mortgage loan), as of the date of substitution, with all of the
representations relating to the Defective Mortgage Loan set forth in or made
pursuant to the related Mortgage Loan Purchase and Sale Agreement; (ix) has a
Phase I Environmental Assessment and a property condition report relating to the
related Mortgaged Property in its Servicing File, which Phase I Environmental
Assessment will evidence that there is no material adverse environmental
condition or circumstance at the related Mortgaged Property for which further
remedial action may be required under applicable law, and which property
condition report will evidence that the related Mortgaged Property is in good
condition with no material damage or deferred maintenance; and (x) constitutes a
"qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the
Code; provided, however, if more than one mortgage loan is to be substituted for
any Defective Mortgage Loan, then all such proposed Replacement Mortgage Loans
shall, in the aggregate, satisfy the requirement specified in clause (i) of this
definition and each such proposed Replacement Mortgage Loan shall, individually,
satisfy each of the requirements specified in clauses (ii) through (x) of this
definition; and provided, further, no mortgage loan shall be substituted for a
Defective Mortgage Loan unless (x) such prospective Replacement Mortgage Loan
shall be acceptable to the Directing Certificateholder (or, if there is no
Directing Certificateholder then serving, to the Holders of Certificates
representing a majority of the Voting Rights allocated to the Controlling
Class), in its (or their) sole discretion, and (y) each Rating Agency shall have
confirmed in writing to the Trustee that such substitution will not in and of
itself result in an Adverse Rating Event with respect to any Class of Rated
Certificates (such written confirmation to be obtained by, and at the expense
of, the related Mortgage Loan Seller effecting the substitution).
"Rated Certificate": Any of the Certificates to which a rating
has been assigned by either Rating Agency at the request of the Depositor.
"Rated Final Distribution Date": As to each Class of
Certificates, the Distribution Date in June 2049.
"Rating Agency": Each of Fitch, Moody's and S&P, or their
successors in interest, and, if applicable, any rating agency rating the
Companion Loan Securities.
"Rating Agency Trigger Event": The reduction of either the Class
A-2FL Swap Counterparty's long-term ratings below "A-" by Xxxxx, "X0" by Moody's
or "A" by S&P for the Class A-2FL Swap Contract or the reduction of either the
Class A-MFL Swap Counterparty's long-term ratings below "A-" by Xxxxx, "X0" by
Moody's or "A" by S&P for the Class A-MFL Swap Contract
"Realized Loss": With respect to each Defaulted Serviced Loan as
to which a Final Recovery Determination has been made, or with respect to any
related REO Loan as to which a Final Recovery Determination has been made as to
the related REO Property, an amount (not less than zero) equal to (i) the unpaid
principal balance of such Serviced Loan or REO Loan, as the case may be, as of
the Due Date related to the Collection Period in which the Final Recovery
Determination was made, plus (ii) all accrued but unpaid interest on such
Serviced Loan or REO Loan, as the case may be, at the related Mortgage Rate to
but not including the Due Date related to the Collection Period in which the
Final Recovery Determination was made, plus (iii) any related unreimbursed
Servicing Advances as of the commencement of the Collection Period in which the
Final Recovery Determination was made, together with any new related Servicing
Advances made during such Collection Period, minus (iv) all payments and
proceeds, if any, received in respect of such Collection Period related to the
Serviced Loan or REO Loan, as the case may be, during the Collection Period in
which such Final Recovery Determination was made (net of any related Liquidation
Expenses paid therefrom).
With respect to any Serviced Loan as to which any portion of the
outstanding principal or accrued interest owed thereunder was forgiven in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Serviced Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
3.20, the amount of such principal or past due interest (other than any Default
Interest) so forgiven.
With respect to any Loan as to which the Mortgage Rate thereon
has been permanently reduced and not recaptured for any period in connection
with a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Loan granted or agreed to by the
Master Servicer or Special Servicer pursuant to Section 3.20, the amount of the
consequent reduction, if any, in the interest portion of each successive Monthly
Payment due thereon. Each such Realized Loss shall be deemed to have been
incurred on the Due Date for each affected Monthly Payment.
With respect to (i) any Pari Passu Whole Loan, Realized Losses
shall be deemed allocated pro rata between the Mortgage Loan and the related
Companion Loan in accordance with the related Intercreditor Agreement and the
portion allocable to the Mortgage Loan shall be further allocated to the
Certificates as provided in this Agreement, and (ii) any A/B Whole Loan,
Realized Losses shall be deemed allocated first to the Companion Loan and then
to the related Mortgage Loan and the portion allocable to the Mortgage Loan
shall be further allocated to the Certificates as provided in this Agreement.
With respect to any Non-Serviced Mortgage Loan, the term
"Realized Loss" shall include any comparable determination made by the related
Non-Serviced Loan Master Servicer or Non-Serviced Loan Special Servicer, as
applicable, under the Non-Serviced Loan Pooling Agreement with respect to such
Non-Serviced Mortgage Loan or any related REO Property.
"Record Date": With respect to each Class of Certificates, for
any Distribution Date, the last Business Day of the calendar month immediately
preceding the month in which such Distribution Date occurs.
"Registered Certificates": Any Certificate that has been
registered under the Securities Act.
"Regular Certificate": Any REMIC II Regular Certificate, Class
A-2FL Certificate or Class A-MFL Certificate.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506 - 1,631 (Jan. 7, 2005))
or by the staff of the Commission, or as may be provided by the Commission or
its staff from time to time.
"Regulation AB Companion Loan Securitization": As defined in
Section 11.15(a).
"Regulation S": Regulation S under the Securities Act.
"Regulation S Certificate": A certificate in the form of Exhibit
N attached hereto.
"Regulation S Global Certificate": A global certificate
representing interests in a Class of Certificates as provided in Section
5.03(g), initially sold in offshore transactions in reliance on Regulation S in
fully registered form without interest coupons.
"Reimbursement Rate": The rate per annum applicable to the
accrual of Advance Interest, which rate per annum shall be equal to the "prime
rate" as published in the "Money Rates" section of The Wall Street Journal, as
such "prime rate" may change from time to time. If The Wall Street Journal
ceases to publish such "prime rate", then the Trustee, in its sole discretion,
shall select an equivalent publication that publishes such "prime rate"; and if
such "prime rate" is no longer generally published or is limited, regulated or
administered by a governmental or quasi governmental body, then the Trustee
shall select a comparable interest rate index. In either case, such selection
shall be made by the Trustee in its sole discretion and the Trustee shall notify
the Master Servicer and the Special Servicer in writing of its selection.
"Release Date": The 40th day after the later of (i) the
commencement of the offering of the Certificates and (ii) the Closing Date.
"Relevant Servicing Criteria": The Servicing Criteria applicable
to the various parties, as set forth on Schedule VIII attached hereto. For the
avoidance of doubt, multiple parties can have responsibility for the same
Relevant Servicing Criteria. With respect to a Servicing Function Participant
engaged by the Trustee, the Master Servicer or the Special Servicer, the term
"Relevant Servicing Criteria" may refer to a portion of the Relevant Servicing
Criteria applicable to the Master Servicer, the Special Servicer or the Trustee.
"REMIC": A "real estate mortgage investment conduit" as defined
in Section 860D of the Code.
"REMIC Administrator": Xxxxx Fargo Bank, N.A., its successor in
interest, or any successor REMIC administrator appointed as herein provided.
"REMIC I": A segregated pool of assets subject hereto and to be
administered hereunder, with respect to which a REMIC election is to be made,
consisting of: (i) the Mortgage Loans as from time to time are subject to this
Agreement and all payments under and proceeds of such Mortgage Loans received or
receivable after the Cut-off Date (other than payments of principal, interest
and other amounts due and payable on such Mortgage Loans on or before the
Cut-off Date), together with all documents, Escrow Payments and Reserve Funds
delivered or caused to be delivered hereunder by the related Mortgage Loan
Seller with respect to such Mortgage Loans, (ii) any REO Property acquired in
respect of a Mortgage Loan and all payments and proceeds of such REO Property;
(iii) the rights of the Depositor under Sections 1, 2, 3, 4, 11, 12, 13, 14, 15,
16, 17, 18, 19, 20 and 21 of the Mortgage Loan Purchase and Sale Agreements; and
(iv) such amounts on or with respect to clauses (i) or (ii) of this definition,
as from time to time are deposited into the Distribution Account, the
Certificate Account, the Interest Reserve Account and the REO Account (if
established) and the Excess Liquidation Proceeds Account (if established), and
in the case of a Whole Loan, to the extent of the Trust's interest in each of
the foregoing.
"REMIC I Distribution Account": The segregated account or
accounts created and maintained as a separate trust account or accounts by the
Trustee pursuant to Section 3.04, which shall be entitled "Xxxxx Fargo Bank,
N.A., as Trustee, in trust for Holders of Banc of America Commercial Mortgage
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-3, REMIC I
Distribution Account" and which account shall be an Eligible Account and a
sub-account of the Distribution Account.
"REMIC I Principal Balance": The principal amount of any REMIC I
Regular Interest outstanding as of any date of determination. As of the Closing
Date, the REMIC I Principal Balance of each REMIC I Regular Interest shall equal
the initial REMIC I Principal Balance as set forth in the Preliminary Statement
hereto. On each Distribution Date, the REMIC I Principal Balance of each REMIC I
Regular Interest shall be permanently reduced by all distributions of principal
deemed to have been made in respect of such REMIC I Regular Interest on such
Distribution Date pursuant to Section 4.01(a), and shall be further permanently
reduced on such Distribution Date by all Realized Losses and Additional Trust
Fund Expenses deemed to have been allocated thereto on such Distribution Date
pursuant to Section 4.04(b).
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I, as described in the Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest for any Distribution Date, the Weighted Average Adjusted Net Mortgage
Rate.
"REMIC II": A segregated pool of assets subject hereto and to be
administered hereunder, and consisting of all of the REMIC I Regular Interests
and amounts distributed thereon as from time to time are held in the REMIC II
Distribution Account.
"REMIC II Certificate": Any Certificate, other than a Class
A-2FL, Class A-MFL or Class R-I Certificate.
"REMIC II Distribution Account": The segregated account or
accounts created and maintained as a separate trust account or accounts by the
Trustee pursuant to Section 3.04, which shall be entitled "Xxxxx Fargo Bank,
N.A., as Trustee, in trust for Holders of Banc of America Commercial Mortgage
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-3, REMIC II
Distribution Account" and which account shall be an Eligible Account and a
sub-account of the Distribution Account.
"REMIC II Regular Certificate": Any REMIC II Certificate, other
than a Class R-II Certificate.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"REMIC Residual Certificate": Any Class R-I or Class R-II
Certificate.
"Rents from Real Property": With respect to any REO Property
(other than any REO Property to the extent related to a Non-Serviced Mortgage
Loan), gross income of the character described in Section 856(d) of the Code,
which income, subject to the terms and conditions of that Section of the Code in
its present form, does not include:
(a) except as provided in Section 856(d)(4) or (6) of the Code,
any amount received or accrued, directly or indirectly, with respect to
such REO Property, if the determination of such amount depends in whole
or in part on the income or profits derived by any Person from such
property (unless such amount is a fixed percentage or percentages of
receipts or sales and otherwise constitutes Rents from Real Property);
(b) any amount received or accrued, directly or indirectly, from
any Person if the Trust Fund owns directly or indirectly (including by
attribution) a ten percent or greater interest in such Person determined
in accordance with Sections 856(d)(2)(B) and (d)(5) of the Code;
(c) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates such REO
Property;
(d) any amount charged for services that are not customarily
furnished in connection with the rental of property to tenants in
buildings of a similar class in the same geographic market as such REO
Property within the meaning of Treasury Regulations Section 1.856-4(b)(1)
(whether or not such charges are separately stated); and
(e) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of such REO
Property and, for any taxable year of the Trust Fund, such rent is no
greater than 15 percent of the total rent received or accrued under, or
in connection with, the lease.
"REO Account": The Pool REO Account and/or a Serviced Whole Loan
REO Account, as applicable.
"REO Acquisition": The acquisition of a REO Property for federal
income tax purposes pursuant to Treasury Regulations Section 1.856-6.
"REO Disposition": The sale or other disposition of the REO
Property pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan(s) deemed for purposes hereof to be
outstanding with respect to each REO Property acquired in respect of any
Serviced Loan or, with respect to ChampionsGate Hotel Pari Passu Mortgage Loan,
which is serviced under the ChampionsGate Hotel Pooling Agreement, in respect of
the Trust's interest in the "REO Property" acquired under the ChampionsGate
Hotel Pooling Agreement relating to the ChampionsGate Hotel Whole Loan or, with
respect to One Park Avenue Pari Passu Mortgage Loan, which is serviced under the
One Park Avenue Pooling Agreement, in respect of the Trust's interest in the
"REO Property" acquired under the One Park Avenue Pooling Agreement relating to
the One Park Avenue Whole Loan. Each REO Loan shall be deemed to have an initial
unpaid principal balance and Stated Principal Balance equal to the unpaid
principal balance and Stated Principal Balance, respectively, of the predecessor
Loan as of the date of the related REO Acquisition. In addition, all Monthly
Payments (other than any Balloon Payment), Assumed Monthly Payments (in the case
of a Balloon Loan delinquent in respect of its Balloon Payment) and other
amounts due and owing, or deemed to be due and owing, in respect of the
predecessor Serviced Loan as of the date of the related REO Acquisition, shall
be deemed to continue to be due and owing in respect of an REO Loan. In
addition, Nonrecoverable Advances (including interest on such Nonrecoverable
Advances) and Workout-Delayed Reimbursement Amounts with respect to such REO
Loan that were reimbursed from collections on the Serviced Loans and resulted in
principal distributed to the Certificateholders being reduced as a result of the
first proviso of the definition of "Principal Distribution Amount", shall be
deemed outstanding until recovered or until a Final Recovery Determination is
made. All amounts payable or reimbursable to the Master Servicer, the Special
Servicer and/or the Trustee in respect of the related Serviced Loan as of the
date of the related REO Acquisition, including, without limitation, any unpaid
Servicing Fees and any unreimbursed Advances, together with any Advance Interest
accrued and payable to the Master Servicer, the Special Servicer and/or the
Trustee in respect of such Advances, shall continue to be payable or
reimbursable to the Master Servicer, the Special Servicer and/or the Trustee as
the case may be, in respect of an REO Loan. If the Loans comprising Hilton
Xxxxxxx Xxxx Passu Whole Loan become REO Loans, amounts received by the Trust
with respect to such REO Loans shall be applied to amounts due and owing in
respect of such REO Loans as provided in Section 1(b) of the Hilton Anatole
Intercreditor Agreement. If the Loans comprising JQH Hotel Portfolio Whole Loan
become REO Loans, amounts received by the Trust with respect to such REO Loans
shall be applied to amounts due and owing in respect of such REO Loans as
provided in Section 3.2 of the JQH Hotel Portfolio Intercreditor Agreement. If
the Loans comprising Metropolis Shopping Center A/B Whole Loan become REO Loans,
amounts received by the Trust with respect to such REO Loans shall be applied to
amounts due and owing in respect of such REO Loans as provided in Section 4 of
the Metropolis Shopping Center Intercreditor Agreement. If the Loans comprising
Pacifica Tower A/B Whole Loan become REO Loans, amounts received by the Trust
with respect to such REO Loans shall be applied to amounts due and owing in
respect of such REO Loans as provided in Section (4) of the Pacifica Tower
Intercreditor Agreement. If the Loans comprising Xxxxxxxx Xxxx Multifamily
Portfolio Whole Loan become REO Loans, amounts received by the Trust with
respect to such REO Loans shall be applied to amounts due and owing in respect
of such REO Loans as provided in Section 3.2 of the Xxxxxxxx Xxxx Multifamily
Portfolio Intercreditor Agreement. Collections in respect of each REO Loan
(exclusive of the amounts to be applied to the payment of, or to be reimbursed
to the Master Servicer or the Special Servicer for the payment of, Servicing
Fees, Special Servicing Fees, Additional Master Servicing Compensation,
Additional Special Servicing Compensation, Liquidation Fees, the costs of
operating, managing, selling, leasing and maintaining the related REO Property)
shall be treated: first, as a recovery of Nonrecoverable Advances (including
interest on such Nonrecoverable Advance) and Workout-Delayed Reimbursed Amounts
with respect to such REO Loan, that were reimbursed from collections on the
Serviced Loans and resulted in principal distributed to the Certificateholders
being reduced as a result of the first proviso of the definition of "Principal
Distribution Amount"; second, as a recovery of accrued and unpaid interest on
such REO Loan at the related Mortgage Rate in effect from time to time to but
not including the Due Date in the Collection Period of receipt; third, as a
recovery of principal of such REO Loan to the extent of its entire unpaid
principal balance; fourth, in accordance with the Servicing Standard of the
Master Servicer or the Special Servicer, as applicable, as a recovery of any
other amounts due and owing in respect of such REO Loan; and fifth, as a
recovery of any other amounts deemed to be due and owing in respect of the
related REO Loan. If either the ChampionsGate Hotel Pari Passu Mortgage Loan or
the One Park Avenue Pari Passu Mortgage Loan becomes an "REO Loan" as defined
under the related Non-Serviced Loan Pooling Agreement, the treatment of the
foregoing amounts with respect to such Mortgage Loan shall be subject to the
terms of the related Intercreditor Agreement and the related Non-Serviced Loan
Pooling Agreement.
"REO Property": A-Mortgaged Property acquired by the Special
Servicer on behalf of the Trustee for the benefit of the Certificateholders,
(and, in the case of the ChampionsGate Hotel Pari Passu Mortgage Loan, the
beneficial interest of the Trust Fund in the related Mortgaged Property if it is
acquired by the ChampionsGate Hotel Special Servicer, for the benefit of the
Certificateholders and the ChampionsGate Hotel Noteholders, and, in the case of
the One Park Avenue Pari Passu Mortgage Loan, the beneficial interest of the
Trust Fund in the related Mortgaged Property if it is acquired by the One Park
Avenue Special Servicer, for the benefit of the Certificateholders and the One
Park Avenue Noteholders) pursuant to Section 3.09 through foreclosure,
acceptance of a deed-in-lieu of foreclosure or otherwise in accordance with
applicable law in connection with the default or imminent default of a Loan. For
the avoidance of doubt, REO Property allocable to a Companion Loan shall not be
an asset of the Trust Fund or REMIC I or REMIC II.
"REO Revenues": All income, rents, profits and proceeds derived
from the ownership, operation or leasing of any REO Property.
"Replacement Mortgage Loan" Any mortgage loan that is substituted
by the related Mortgage Loan Seller for a Defective Mortgage Loan as
contemplated by Section 2.03.
"Reportable Event": As defined in Section 11.07.
"Reporting Servicer": As defined in Section 11.10.
"Request for Release": A request for release signed by a
Servicing Officer of, as applicable, the Master Servicer or Special Servicer in
the form of Exhibit D attached hereto.
"Request for Review": A request for review signed by a Servicing
Officer of, as applicable, the Master Servicer or Special Servicer in the form
of Exhibit H attached hereto.
"Required Appraisal Serviced Loan": As defined in Section
3.19(b).
"Required Claims-Paying Ratings": With respect to any insurance
carrier, claims-paying ability ratings at least equal to the following minimum
ratings assigned to such carrier by at least one of the other following parties
and, in any event, by each Rating Agency that assigned a rating to the
claims-paying ability of such insurance carrier: Fitch ("A" or better), Xxxxx'x
("A2" or better), S&P ("A" or better) and A.M. Best ("A: VIII" or better) or any
insurance carrier backed or guaranteed by an insurer with such required ratings;
provided, however, a rating by A.M. Best shall be disregarded and shall not be
applicable as one of the two required ratings except with respect to a fidelity
bond or errors and omissions insurance maintained by a Sub-Servicer and then
only to the extent in force as of the Closing Date. Notwithstanding the
preceding sentence, an insurance carrier with lower or fewer claims-paying
ability ratings shall be deemed to have the "Required Claims-Paying Ratings" if
the applicable Rating Agency has confirmed in writing that such insurance
carrier shall not result, in and of itself, in a downgrading, withdrawal or
qualification (if applicable) of the then current rating assigned by such Rating
Agency to any Class of Certificates or Companion Loan Securities unless, with
respect to policies maintained by borrowers, a higher claims-paying ability
rating is required under any of the loan documents.
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Loan, any amounts delivered
by the related Mortgagor (and not previously disbursed) to be held in escrow by
or on behalf of the mortgagee representing reserves for principal and interest
payments, repairs, replacements, capital improvements (including, without
limitation, tenant improvements and leasing commissions), and/or environmental
testing and remediation with respect to the related Mortgaged Property.
"Resolution Extension Period": This term shall mean:
(i) for purposes of remediating a Material Breach with
respect to any Mortgage Loan, the 90-day period following the end
of the applicable Initial Resolution Period;
(ii) for purposes of remediating a Material Document
Defect with respect to any Mortgage Loan that is not a Specially
Serviced Loan at the commencement of, and does not become a
Specially Serviced Loan during, the applicable Initial Resolution
Period, the period commencing at the end of the applicable
Initial Resolution Period and ending on, and including, the
earlier of (i) the 90th day following the end of such Initial
Resolution Period and (ii) the 45th day following receipt by the
related Mortgage Loan Seller of written notice from the Master
Servicer or the Special Servicer of the occurrence of any
Servicing Transfer Event with respect to such Mortgage Loan
subsequent to the end of such Initial Resolution Period;
(iii) for purposes of remediating a Material Document
Defect with respect to any Mortgage Loan that is a not a
Specially Serviced Loan as of the commencement of the applicable
Initial Resolution Period, but as to which a Servicing Transfer
Event occurs during such Initial Resolution Period, the period
commencing at the end of the applicable Initial Resolution Period
and ending on, and including, the 90th day following receipt by
the related Mortgage Loan Seller of written notice from the
Master Servicer or the Special Servicer of the occurrence of such
Servicing Transfer Event; and
(iv) for purposes of remediating a Material Document
Defect with respect to any Mortgage Loan that is a Specially
Serviced Loan as of the commencement of the applicable Initial
Resolution Period, zero days; provided, however, if the related
Mortgage Loan Seller did not receive written notice from the
Master Servicer or the Special Servicer of the relevant Servicing
Transfer Event as of the commencement of the applicable Initial
Resolution Period, then such Servicing Transfer Event shall be
deemed to have occurred during such Initial Resolution Period and
the immediately preceding clause (iii) of this definition will be
deemed to apply.
In addition, the related Mortgage Loan Seller shall have an
additional 90 days to cure such Material Document Defect or Material Breach,
provided that such Mortgage Loan Seller has commenced and is diligently
proceeding with the cure of such Material Document Defect or Material Breach and
such failure to cure is solely the result of a delay in the return of documents
from the local filing or recording authorities.
"Responsible Officer": When used with respect to the Trustee, any
officer assigned to the Corporate Trust Office, any vice president, any
assistant vice president, any assistant secretary, any assistant treasurer, or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers to whom a particular
matter is referred by the Trustee because of such officer's knowledge of and
familiarity with the particular subject. When used with respect to any
Certificate Registrar (other than the Trustee), any officer or assistant officer
thereof.
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which the Certificates are first
offered to persons other than the managers and any other distributor (as defined
in Regulation S) of the Certificates, and (b) the Closing Date.
"Xxxxxxxx Xxxx Multifamily Portfolio Intercreditor Agreement":
The A Notes Intercreditor Agreement dated as of January 25, 2007 by and between
the Xxxxxxxx Xxxx Multifamily Portfolio Note A-1 Holder and the Xxxxxxxx Xxxx
Multifamily Portfolio Note A-2 Holder relating to the relative rights of such
holders, as the same may be further amended from time to time in accordance with
the terms thereof.
"Xxxxxxxx Xxxx Multifamily Portfolio Note A-1": With respect to
the Xxxxxxxx Xxxx Multifamily Portfolio Pari Passu Mortgage Loan, the related
Mortgage Note that is included in the Trust Fund.
"Xxxxxxxx Xxxx Multifamily Portfolio Note A-1 Holder": The holder
of the Xxxxxxxx Xxxx Multifamily Portfolio Note A-1, initially Hypo Real Estate
Capital Corporation (or an affiliate thereof).
"Xxxxxxxx Xxxx Multifamily Portfolio Note A-2": The Mortgage Note
related to Xxxxxxxx Xxxx Multifamily Portfolio Pari Passu Whole Loan that is not
included in the Trust, which is pari passu in right of payment to the Xxxxxxxx
Xxxx Multifamily Portfolio Note A-1 as set forth in the Xxxxxxxx Xxxx
Multifamily Portfolio Intercreditor Agreement.
"Xxxxxxxx Xxxx Multifamily Portfolio Note A-2 Holder": The holder
of the Xxxxxxxx Xxxx Multifamily Portfolio Note A-2, initially Hypo Real Estate
Capital Corporation (or an affiliate thereof).
"Xxxxxxxx Xxxx Multifamily Portfolio Noteholders": The Xxxxxxxx
Xxxx Multifamily Portfolio Note A-1 Holder and Xxxxxxxx Xxxx Multifamily
Portfolio Note A-2 Holder.
"Xxxxxxxx Xxxx Multifamily Portfolio Pari Passu Companion Loan":
The loan evidenced by the Xxxxxxxx Xxxx Multifamily Portfolio Note A-2.
"Xxxxxxxx Xxxx Multifamily Portfolio Pari Passu Companion Loan
Holder": The holder of the Xxxxxxxx Xxxx Multifamily Portfolio Pari Passu
Companion Loan.
"Xxxxxxxx Xxxx Multifamily Portfolio Pari Passu Mortgage Loan":
The Mortgage Loan identified as Loan No. 104 in the Mortgage Loan Schedule,
which, together with the Xxxxxxxx Xxxx Multifamily Portfolio Note A-1, is
secured by a Mortgage on the related Mortgaged Properties.
"Xxxxxxxx Xxxx Multifamily Portfolio Pari Passu Whole Loan": The
Xxxxxxxx Xxxx Multifamily Portfolio Pari Passu Mortgage Loan together with the
Xxxxxxxx Xxxx Multifamily Portfolio Pari Passu Companion Loan. References herein
to Xxxxxxxx Xxxx Multifamily Portfolio Pari Passu Whole Loan shall be construed
to refer to the aggregate indebtedness under the Xxxxxxxx Xxxx Multifamily
Portfolio Note A-1 and the Xxxxxxxx Xxxx Multifamily Portfolio Note A-2.
"Rule 144A": Rule 144A under the Securities Act.
"S&P": Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc., or its successor in interest. If neither S&P nor
any successor remains in existence, "S&P" shall be deemed to refer to such other
nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Master Servicer, the Special Servicer and the REMIC Administrator
and specific ratings of Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc. herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Xxxxxxxx-Xxxxx Act": The Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
"Xxxxxxxx-Xxxxx Certification": As defined in Section
11.05(a)(iv).
"Securities Act": The Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"Securitized Companion Loan": Any of the ChampionsGate Hotel Pari
Passu Companion Loan, Hilton Xxxxxxx Xxxx Passu Companion Loan, JQH Hotel
Portfolio Pari Passu Companion Loan, One Park Avenue Pari Passu Companion Loan
or Xxxxxxxx Xxxx Multifamily Portfolio Pari Passu Companion Loan, if and for so
long as each such Pari Passu Companion Loan is included in a Regulation AB
Companion Loan Securitization.
"Securitized Companion Loan Pooling Agreement": Any pooling and
servicing agreement or other agreement that creates a trust fund whose assets
include a Securitized Companion Loan.
"Securitized Companion Loan Securitization": Any securitization
whose assets include a Securitized Companion Loan.
"Security Agreement": With respect to any Loan, any security
agreement, chattel mortgage or similar document or instrument, whether contained
in the related Mortgage or executed separately, creating in favor of the holder
of such Mortgage a security interest in the personal property constituting
security for repayment of such Loan.
"Senior Certificate": Any Class A-1, Class A-2, Class A-2FL,
Class A-3, Class A-AB, Class A-4, Class A-5, Class A-1A or Class XW Certificate.
"Senior Principal Distribution Cross Over Date": The first
Distribution Date as of which the aggregate Class Principal Balance of the Class
A-1 Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class A-5
Certificates and Class A-1A Certificates outstanding immediately prior to such
Distribution Date exceeds the sum of (a) the aggregate Stated Principal Balance
of the Mortgage Pool that will be outstanding immediately following such
Distribution Date, plus (b) the lesser of (i) the Principal Distribution Amount
for such Distribution Date and (ii) the portion of the Available Distribution
Amount for such Distribution Date that will remain after the distributions of
interest to be made on the Class A-1 Certificates, Class A-2 Certificates, Class
A-2FL Regular Interest, Class A-3 Certificates, Class A-AB Certificates, Class
A-4 Certificates, Class A-5 and Certificates Class A-1A Certificates on such
Distribution Date have been so made.
"Sequential Pay Certificate": Any Class A Certificate (other than
the Class A-2FL and Class A-MFL Certificates), Class B Certificate, Class C
Certificate, Class D Certificate, Class E Certificate, Class F Certificate,
Class G Certificate, Class H Certificate, Class J Certificate, Class K
Certificate, Class L Certificate, Class M Certificate, Class N Certificate,
Class O Certificate, Class P Certificate, Class Q Certificate or Class S
Certificate.
"Serviced Loan": Any Mortgage Loan (other than the ChampionsGate
Hotel Pari Passu Mortgage Loan and the One Park Avenue Pari Passu Mortgage Loan)
or Serviced Whole Loan.
"Serviced Whole Loan": Any Whole Loan (other than the
ChampionsGate Hotel Pari Passu Whole Loan and the One Park Avenue Whole Loan).
"Serviced Whole Loan Custodial Account": With respect to the
Serviced Whole Loans, the segregated account or accounts created and maintained
by the Master Servicer pursuant to Section 3.04(e) on behalf of (i) the Hilton
Anatole Noteholders, which shall be entitled "Bank of America, National
Association, as Master Servicer, in trust for the Hilton Anatole Noteholders, as
their interests may appear"; (ii) the JQH Hotel Portfolio Noteholders, which
shall be entitled "Bank of America, National Association, as Master Servicer, in
trust for the JQH Hotel Portfolio Noteholders, as their interests may appear";
(iii) the Metropolis Shopping Center Noteholders, which shall be entitled "Bank
of America, National Association, as Master Servicer, in trust for the
Metropolis Shopping Center Noteholders, as their interests may appear"; (iv) the
Pacifica Tower Noteholders, which shall be entitled "Bank of America, National
Association, as Master Servicer, in trust for the Pacifica Tower Noteholders, as
their interests may appear"; and (v) the Xxxxxxxx Xxxx Multifamily Portfolio
Noteholders, which shall be entitled "Bank of America, National Association, as
Master Servicer, in trust for the Xxxxxxxx Xxxx Multifamily Portfolio
Noteholders, as their interests may appear", as applicable. Any such account
shall at all times be an Eligible Account.
"Serviced Whole Loan Remittance Amount": With respect to any
Master Servicer Remittance Date and any Serviced Whole Loan, an amount equal to
(a) all amounts on deposit in the related Serviced Whole Loan Custodial Account
as of the commencement of business on such Master Servicer Remittance Date, net
of (b) any portion of the amounts described in clause (a) of this definition
that represents one or more of the following: (i) collected Monthly Payments
that are due on a Due Date following the end of the related Collection Period,
(ii) any unscheduled payments of principal (including, without limitation,
Principal Prepayments, and interest, Liquidation Proceeds and Insurance Proceeds
received after the end of the related Collection Period), (iii) any Prepayment
Premiums received after the end of the related Collection Period, (iv) any
amounts payable or reimbursable to any Person from the related Serviced Whole
Loan Custodial Account pursuant to any of clauses (ii) through (xvii) of Section
3.05(f), (v) any Excess Liquidation Proceeds that are unrelated to such Serviced
Whole Loan, and (vi) any amounts deposited into the related Serviced Whole Loan
Custodial Account in error, provided that, with respect to the Master Servicer
Remittance Date that occurs in the same calendar month as the Final Distribution
Date, the Serviced Whole Loan Remittance Amount will be calculated without
regard to clauses (b)(i), (b)(ii) and (b)(iii) of this definition.
"Serviced Whole Loan REO Account": As defined in Section 3.16(b).
"Servicer Reports": Each of the: (i) CMSA Delinquent Loan Status
Report, (ii) CMSA REO Status Report, (iii) CMSA Historical Loan Modification and
Corrected Mortgage Loan Report, (iv) CMSA Comparative Financial Status Report,
(v) CMSA Servicer Watch List Report, (vi) CMSA NOI Adjustment Worksheet, (vii)
CMSA Operating Statement Analysis Report, (viii) CMSA Loan Level Reserve-LOC
Report, (ix) CMSA Loan Periodic Update File, (x) CMSA Property File, (xi) CMSA
Financial File and (xii) CMSA Advance Recovery Report.
"Service(s)(ing)": In accordance with Regulation AB, the act of
servicing and administering the Mortgage Loans or any other assets of the Trust
by an entity that meets the definition of "servicer" set forth in Item 1101 of
Regulation AB and is referenced in the disclosure requirements set forth in Item
1108 of Regulation AB. For the avoidance of doubt, any uncapitalized occurrence
of this term shall have the meaning commonly understood by participants in the
commercial mortgage-backed securities market.
"Servicing Account": The account or accounts created and
maintained pursuant to Section 3.03(a).
"Servicing Advances": Subject to Section 3.19(d) and with respect
to any Serviced Loan, all customary, reasonable and necessary "out-of-pocket"
costs and expenses incurred or to be incurred, as the context requires, by the
Master Servicer or, with respect to the Specially Serviced Loans, by the Master
Servicer at the direction of the Special Servicer or by the Special Servicer
(or, if applicable, the Trustee) in connection with the servicing of a Serviced
Loan after a default, delinquency or other unanticipated event, or in connection
with the administration of any REO Property, including, but not limited to, the
cost of (a) compliance with the obligations of the Master Servicer set forth in
Section 3.03(c) and Section 3.09, (b) the preservation, insurance, restoration,
protection and management of a Mortgaged Property, (c) obtaining any Liquidation
Proceeds or Insurance Proceeds in respect of any Serviced Loan or REO Property,
(d) any enforcement or judicial proceedings with respect to a Mortgaged
Property, including, without limitation, foreclosures, and (e) the operation,
management, maintenance and liquidation of any REO Property; provided that
notwithstanding anything herein to the contrary, "Servicing Advances" shall not
include allocable overhead of the Master Servicer or the Special Servicer (or
the Trustee, if applicable), such as costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses, or costs incurred by either such party in
connection with its purchase of any Serviced Loan or REO Property pursuant to
any provision of this Agreement. All Emergency Advances made by the Master
Servicer at the direction of the Special Servicer hereunder shall be considered
"Servicing Advances" for the purposes hereof.
"Servicing Criteria": The criteria set forth in paragraph (d) of
Item 1122 of Regulation AB as such may be amended from time to time.
"Servicing Fees": With respect to each Serviced Loan and REO
Loan, the Master Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required to
be part of the related Mortgage File), including, without limitation, the
related Phase I Environmental Site Assessment and any related environmental
insurance or endorsement, in the possession of the Master Servicer or the
Special Servicer and relating to the origination and servicing of any Mortgage
Loan or the administration of any REO Property.
"Servicing Function Participant": Any Additional Servicer,
Sub-Servicer, Subcontractor or any other Person, other than the Master Servicer,
the Special Servicer and the Trustee, that is performing activities that address
the Servicing Criteria, unless such Person's activities relate only to 5% or
less of the Mortgage Loans (by Stated Principal Balance).
"Servicing Officer": Any officer or authorized signatory of the
Master Servicer or the Special Servicer or any Additional Servicer involved in,
or responsible for, the administration and servicing of Loans, whose name and
specimen signature appear on a list of such officers and authorized signatories
furnished by such party to the Trustee and the Depositor on the Closing Date, as
such list may be amended from time to time thereafter.
"Servicing-Released Bid": As defined in Section 7.01(d).
"Servicing-Retained Bid": As defined in Section 7.01(d).
"Servicing Return Date": With respect to any Corrected Serviced
Loan, the date that servicing thereof is returned by the Special Servicer to the
Master Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master Servicer
and the Special Servicer subject to applicable law and the express terms of the
relevant Loans and in the case of a Serviced Whole Loan, the related
Intercreditor Agreement, to service and administer the Serviced Loans and any
REO Properties 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 Serviced Loans, the full collection
of all Prepayment Premiums that may become payable under the Serviced Loans and,
in the case of the Special Servicer, if a Serviced Loan comes into and continues
in default and if, in the good faith and reasonable judgment of the Special
Servicer, no satisfactory arrangements can be made for the collection of the
delinquent payments (including payments of Prepayment Premiums), the
maximization of the recovery on such Serviced Loan to the Certificateholders,
and, in the case of a Serviced Whole Loan, on behalf of the related Companion
Loan Holder, as a collective whole, on a net present value basis; and (c)
without regard to: (i) any known relationship that the Master Servicer (or any
Affiliate thereof) or the Special Servicer (or any Affiliate thereof), as the
case may be, may have with the related Mortgagor or with any other party to this
Agreement; (ii) the ownership of any Certificate or Companion Loan Holder or any
interest in any mezzanine loan by the Master Servicer (or any Affiliate thereof)
or the Special Servicer (or any Affiliate thereof), as the case may be; (iii)
the obligation of the Master Servicer to make Advances, (iv) the obligation of
the Special Servicer to make, or direct the Master Servicer to make, Servicing
Advances; (v) the right of the Master Servicer (or any Affiliate thereof) or the
Special Servicer (or any Affiliate thereof), as the case may be, to receive
reimbursement of costs, or the sufficiency of any compensation payable to it,
hereunder or with respect to any particular transaction; or (vi) any ownership,
servicing and/or management by the Master Servicer (or any Affiliate thereof) or
the Special Servicer (or any Affiliate thereof), as the case may be, of any
other mortgage loans or real property.
"Servicing Transfer Event" shall mean, with respect to any
Serviced Loan, any of the following events:
(a) the related Mortgagor has failed to make when due any Monthly
Payment (including a Balloon Payment) or any other payment required under
the related loan documents, which failure continues, or the Master
Servicer (or the Special Servicer with the consent of the Directing
Certificateholder) determines, in its reasonable, good faith judgment,
will continue, unremedied (i) except in the case of a delinquent Balloon
Payment, for 60 days beyond the date on which the subject payment was
due, and (ii) solely in the case of a delinquent Balloon Payment and if
(x) the related Borrower is actively seeking a refinancing commitment,
(y) the related Borrower continues to make payments in the amount of its
Monthly Payment, and (z) subject to Section 3.21(f), the Directing
Certificateholder consents, for 60 days beyond the related maturity date
or, if the related Mortgagor has delivered to the Master Servicer, on or
before the 60th day after the related maturity date, a refinancing
commitment reasonably acceptable to the Master Servicer, for such longer
period, not to exceed 120 days beyond the related maturity date, during
which the refinancing would occur; or
(b) the Master Servicer (or the Special Servicer with the consent
of the Directing Certificateholder) has determined, in its reasonable,
good faith judgment, that a default in the making of a Monthly Payment
(including a Balloon Payment) or any other material payment required
under the related loan documents is likely to occur within 30 days and
either (i) the related Mortgagor has requested a material modification of
the payment terms of the Serviced Loan or (ii) such default is likely to
remain unremedied for at least the period contemplated by clause (a) of
this definition; or
(c) the Master Servicer (or the Special Servicer with the consent
of the Directing Certificateholder) has determined, in its reasonable,
good faith judgment, that a default, other than as described in clause
(a) or (b) of this definition, has occurred or is imminent that may
materially impair the value of the related Mortgaged Property as security
for the Serviced Loan, which default has continued or is reasonably
expected to continue unremedied for the applicable cure period under the
terms of the Serviced Loan (or, if no cure period is specified, for 60
days); or
(d) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary action
against the related Mortgagor under any present or future U.S. federal or
state bankruptcy, insolvency or similar law or the appointment of a
conservator, receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceeding, or for
the winding-up or liquidation of its affairs, shall have been entered
against the related Mortgagor; or
(e) the related Mortgagor shall have consented to the appointment
of a conservator, receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceeding of
or relating to such Mortgagor or of or relating to all or substantially
all of its property; or
(f) the related Mortgagor shall have admitted in writing its
inability to pay its debts generally as they become due, filed a petition
to take advantage of any applicable insolvency or reorganization statute,
made an assignment for the benefit of its creditors, or voluntarily
suspended payment of its obligations; or
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the
related Mortgaged Property.
Notwithstanding the foregoing, with respect to any Serviced Whole
Loan, the related Mortgage Loan and each related Companion Loan shall be deemed
to be a Specially Serviced Loan if any loan within such Serviced Whole Loan
becomes a Specially Serviced Loan.
A Servicing Transfer Event with respect to any Serviced Loan
shall cease to exist:
(w) in the case of the circumstances described in clause (a) of
this definition, if and when the related Mortgagor has made three
consecutive full and timely Monthly Payments under the terms of such Loan
(as such terms may be changed or modified in connection with a bankruptcy
or similar proceeding involving the related Mortgagor or by reason of a
modification, waiver or amendment granted or agreed to by the Master
Servicer or the Special Servicer pursuant to Section 3.20);
(x) in the case of the circumstances described in clauses (b),
(d), (e) and (f) of this definition, if and when such circumstances cease
to exist in the reasonable, good faith judgment of the Special Servicer;
(y) in the case of the circumstances described in clause (c) of
this definition, if and when such default is cured in the reasonable,
good faith judgment of the Special Servicer; and
(z) in the case of the circumstances described in clause (g) of
this definition, if and when such proceedings are terminated;
so long as at that time no circumstance identified in clauses (a) through (g) of
this definition exists that would cause the Loan to continue to be characterized
as a Specially Serviced Loan and provided that no additional default is
foreseeable in the reasonable good faith judgment of the Special Servicer.
"Similar Law": As defined in Section 5.02(c).
"Single-Purpose-Entity": A Person, other than an individual,
whose organizational documents provide that it is formed solely for the purpose
of owning the related Mortgaged Property, Mortgaged Properties securing other
Loans and assets incidental to the ownership and operation of such Mortgaged
Property or Properties, and that has agreed, either in such organizational
documents or the loan documents relating to any related Loan, that it (a) does
not engage in any business unrelated to such property and the financing thereof;
(b) does not have any indebtedness other than as permitted by the related
Mortgage, (c) maintains its own books, records and accounts, in each case that
are separate and apart from the books, records and accounts of any other Person;
(d) conducts business in its own name; (e) does not guarantee or assume the
debts or obligations of any other person; (f) does not commingle its assets or
funds with those of any other Person; (g) transacts business with affiliates on
an arm's length basis; and (h) holds itself out as being a legal entity separate
and apart from any other Person. In addition, such entity's organizational
documents provide that any dissolution and winding up or insolvency filing for
such entity requires either the unanimous consent of all partners or members, as
applicable, or the consent of an independent Person (whether as a partner,
member, or director in such entity or in any Person that is the managing member
or general partner of such entity or otherwise), and either such organizational
documents or the terms of the loan documents provide that such organizational
documents may not be amended without the consent of the lender as regards such
single purpose entity requirements.
"Single Certificate": For purposes of Section 4.02(a), a
Certificate of any Class of Regular Certificates evidencing a $1,000
denomination or, in the case of a Class XW Certificate, a 100% Percentage
Interest.
"Sole Pooled Certificateholder": Any Holder (or Holders provided
that they act in unanimity) holding 100% of the Class XW Certificates and
Non-Investment Grade Sequential Pay Certificates or an assignment of the voting
rights thereof; provided that the Class Principal Balances, as applicable, of
the Investment Grade Sequential Pay Certificates and the Class A-2FL and Class
A-MFL Certificates have been reduced to zero.
"Special Action": As defined in Section 3.21(e).
"Special Servicer": Midland Loan Services, Inc., its successors
in interest, or any successor special servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Loan and each REO Loan, the fee designated as such and payable to the Special
Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Loan and each REO Loan, 0.25% (25 basis points) per annum.
"Specially Serviced Loan": Any Serviced Loan as to which there
then exists a Servicing Transfer Event. Upon the occurrence of a Servicing
Transfer Event with respect to any Serviced Loan, such Serviced Loan shall
remain a Specially Serviced Loan until the earliest of (i) its removal from the
Trust Fund (in the case of a Mortgage Loan), (ii) a REO Acquisition with respect
to the related Mortgaged Property and (iii) the cessation of all existing
Servicing Transfer Events with respect to such Serviced Loan.
"Startup Day": With respect to each of REMIC I and REMIC II, the
day designated as such in Section 10.01(c).
"Stated Maturity Date": With respect to any Loan, the Due Date on
which the last payment of principal is due and payable under the terms of the
related Mortgage Note as in effect on the Closing Date, without regard to any
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Loan granted or agreed to by the Master Servicer or Special
Servicer pursuant to Section 3.20.
"Stated Principal Balance": With respect to any Mortgage Loan and
any successor REO Loan, a principal amount initially equal to the Cut-off Date
Balance of such Mortgage Loan, that is permanently reduced on each Distribution
Date (to not less than zero) by (i) all payments (or P&I Advances in lieu
thereof) of, and all other collections allocated as provided in Section 1.03 to,
principal of or with respect to such Mortgage Loan (or successor REO Loan) that
are (or, if they had not been applied to cover any Additional Trust Fund
Expense, would have been) distributed to Certificateholders on such Distribution
Date, and (ii) the principal portion of any Realized Loss incurred in respect of
such Mortgage Loan (or successor REO Loan) during the related Collection Period.
With respect to any Companion Loan (and any successor REO Loan), a principal
amount initially equal to the Cut-off Date Balance of such Companion Loan that
is permanently reduced (to not less than zero) by (i) all payments of, and all
other collections allocated as provided in Section 1.03 to, principal of or with
respect to such Companion Loan (or successor REO Loan) that are (or, if they had
not been applied to cover any Additional Trust Fund Expense, would have been)
distributed to the related Companion Loan Holder, and (ii) the principal portion
of any Realized Loss incurred in respect of such Companion Loan (or successor
REO Loan) during the related Collection Period. Notwithstanding the foregoing,
if a Liquidation Event occurs in respect of any Loan or REO Property, then the
"Stated Principal Balance" of such Loan or of the related REO Loan, as the case
may be, shall be zero commencing as of the Distribution Date in the Collection
Period next following the Collection Period in which such Liquidation Event
occurred. In addition, to the extent that principal from general collections is
used to reimburse Nonrecoverable Advances or Work-out Delayed Reimbursement
Amounts, and such amount has reduced the Principal Distribution Amount, such
amount shall not reduce the Stated Principal Balance prior to a Liquidation
Event or other liquidation or disposition of the related Mortgage Loan or REO
Property (other than for purposes of computing the Weighted Average Adjusted Net
Mortgage Rate).
With respect to a Serviced Whole Loan, the Stated Principal
Balance shall be the sum of the "Stated Principal Balance" of the related
Mortgage Loan and the Stated Principal Balance of the related Companion Loan.
The Stated Principal Balance of a Non-Serviced Loan will be
calculated in accordance with the definition of "Stated Principal Balance" in
the related Non-Serviced Loan Pooling Agreement.
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the
Master Servicer or the Special Servicer, on the one hand, and any Sub-Servicer,
on the other hand as provided in Section 3.22, as the same may be modified or
amended.
"Subcontractor": Any vendor, subcontractor or other Person that
is not responsible for the overall servicing (as "servicing" is commonly
understood by participants in the mortgage-backed securities market) of Mortgage
Loans but performs one or more discrete functions identified in Item 1122(d) of
Regulation AB with respect to Mortgage Loans under the direction or authority of
the Master Servicer, the Special Servicer, the Trustee, any Additional Servicer
or any Sub-Servicer.
"Subordinate Certificate": Any Class A-M, Class A-MF, Class A-MFL
(through the Class A-MFL Regular Interest), Class A-J, Class B, Class C, Class
D, Class E , Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class Q, Class S Certificate or REMIC Residual
Certificate.
"Substitution Shortfall Amount": An amount equal to the excess if
any of the difference between the Purchase Price of the Deleted Mortgage Loan
calculated as of the date of substitution and the Stated Principal Balance of
such Qualifying Substitute Mortgage Loan as of the date of substitution.
"Successful Bidder": As defined in Section 7.01(d).
"SunTrust Bank": SunTrust Bank, and its successors in interest.
"Swap Contract": Either the Class A-2FL Swap Contract or the
Class A-MFL Swap Contract.
"Swap Trustee": The Person who serves as Trustee hereunder shall
also serve as trustee of the Grantor Trusts (such Person in such capacity, the
"Swap Trustee").
"Tax Matters Person": With respect to each of REMIC I and REMIC
II, the Person designated as the "tax matters person" of such REMIC in the
manner provided under Treasury Regulations Section 1.860F-4(d) and Treasury
Regulations Section 301.6231(a)(7)-1. The "Tax Matters Person" for each of REMIC
I and REMIC II is the Holder of Certificates evidencing the largest Percentage
Interest in the related Class of REMIC Residual Certificates.
"Tax Returns": The federal income tax returns on IRS Form 1066,
U.S. Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of each of REMIC I and REMIC II due to its classification as a REMIC
under the REMIC Provisions and the tax returns due with respect to each Grantor
Trust, together with any and all other information, reports or returns that may
be required to be furnished to the Certificateholders or filed with the IRS or
any other governmental taxing authority under any applicable provisions of
federal or Applicable State Law.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section
5.02(d)(i)(B).
"Transferee": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Trust": The common law trust created hereby.
"Trust Fund": Collectively, all of the assets of REMIC I, REMIC
II, the Grantor Trusts and the Loss of Value Reserve Fund.
"Trustee": Xxxxx Fargo Bank, N.A., in its capacity as Trustee
hereunder, its successor in interest, or any successor trustee appointed as
herein provided.
"Trustee Fee": The fee payable to the Trustee on each
Distribution Date for its services as Trustee hereunder, in an aggregate amount
equal to one month's interest at the Trustee Fee Rate in respect of each
Mortgage Loan and related REO Loan, calculated on the Stated Principal Balance
as of the Due Date in the immediately preceding Collection Period and for the
same number of days (i.e., on the basis of, as applicable, a 360-day year
consisting of twelve 30-day months or the actual number of days elapsed during
each calendar month in a 360-day year) respecting which any related interest
payment due on such Serviced Loan or deemed to be due on such related REO Loan
is computed under the terms of the related Mortgage Note (as such terms may be
changed or modified at any time following the Closing Date) and applicable law.
"Trustee Fee Rate": A rate of 0.00065% per annum.
"Trustee Reports": Each of the CMSA Bond Level File and the CMSA
Collateral Summary File.
"Trustee's Website": The website maintained by the Trustee and
initially located at "xxx.xxxxxxx.xxx", or at such other address as the Trustee
may designate from time to time.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed (if
required by the UCC) and filed pursuant to the Uniform Commercial Code, as in
effect in the relevant jurisdiction.
"UCC-1", "UCC-2" and "UCC-3": UCC Financing Statements on Form
UCC-1, Form UCC-2 and Form UCC-3, respectively.
"Uncertificated Accrued Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, one month's interest at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued on the REMIC I Principal Balance of such REMIC I
Regular Interest outstanding immediately prior to such Distribution Date. The
Uncertificated Accrued Interest in respect of any REMIC I Regular Interest for
any Distribution Date shall be deemed to have accrued during the applicable
Interest Accrual Period.
"Uncertificated Distributable Interest": With respect to any
REMIC I Regular Interest, for any Distribution Date, the Uncertificated Accrued
Interest in respect of such REMIC I Regular Interest for such Distribution Date,
reduced (to not less than zero) by the product of (i) the Net Aggregate
Prepayment Interest Shortfall, if any, for such Distribution Date, multiplied by
(ii) a fraction, the numerator of which is the Uncertificated Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution Date, and the
denominator of which is the aggregate Uncertificated Accrued Interest in respect
of all the REMIC I Regular Interests for such Distribution Date.
"Underwriter": Each of Banc of America Securities LLC,
Commerzbank Capital Markets Corp., Hypo Capital Markets, Inc., SunTrust Capital
Markets, Inc., Citigroup Global Markets Inc. and Credit Suisse Securities (USA)
LLC.
"Underwriting Agreement: The underwriting agreement dated as of
July 18, 2007 among Bank of America, the Depositor and the Underwriters.
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person that made the
Advance hereunder, on the one hand, and the Trust Fund, on the other, as part of
a Workout-Delayed Reimbursement Amount pursuant to subsections (ii) and (vi) of
Section 3.05(a) but that has not been recovered from the Borrower or otherwise
from collections on or the proceeds of the Loan or related REO Property in
respect of which the Advance was made.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in the applicable
Treasury regulations) created or organized in, or under the laws of, the United
States any State thereof or the District of Columbia, including an entity
treated as a corporation or partnership for federal income tax purposes, or an
estate whose income is subject to United States federal income tax regardless of
its source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more such
U.S. Persons have the authority to control all substantial decisions of the
trust (or, to the extent provided in applicable Treasury regulations, certain
trusts in existence on August 20, 1996 that are eligible to elect to be treated
as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates that is allocated to any Certificate. At all times during the term
of this Agreement, 98% of the Voting Rights shall be allocated among the Holders
of the various outstanding Classes of Sequential Pay Certificates, the Class
A-2FL Certificates and the Class A-MFL Certificates in proportion to the
respective Class Principal Balances of their Certificates and 2% of the Voting
Rights shall be allocated to the Holders of the Class XW Certificates. None of
the Class R-I or Class R-II Certificates will be entitled to any Voting Rights.
Voting Rights allocated to a Class of Certificateholders shall be allocated
among such Certificateholders in proportion to the Percentage Interests
evidenced by their respective Certificates.
"Weighted Average Adjusted Net Mortgage Rate": With respect to
any Distribution Date, the weighted average of the respective Adjusted Net
Mortgage Rates for all the Mortgage Loans and related REO Loans, weighted on the
basis of the respective Stated Principal Balances of such Mortgage Loans and REO
Loans outstanding immediately prior to such Distribution Date.
"WHFIT": A "Widely Held Fixed Investment Trust" as that term is
defined in Treasury Regulations Section 1.671-5(b)(22) or successor provisions.
"WHFIT Regulations": Treasury Regulations Section 1.671-5, as
amended.
"Whole Loan": Each A/B Whole Loan and each Pari Passu Whole Loan,
as defined herein.
"Withheld Amounts": As defined in Section 4.05.
"Within Grace Period Loan": With respect to any Master Servicer
Remittance Date, any Serviced Loan having any Monthly Payment remaining unpaid
past its Due Date, as of the close of business on the Determination Date in the
same calendar month, but that is not delinquent past the applicable grace period
for such Monthly Payment as of the close of business on such Determination Date.
"Workout-Delayed Reimbursement Amount": With respect to any
Serviced Loan, the amount of any Advance made with respect to such Loan on or
before the date such Loan becomes (or, but for the making of three monthly
payments under its modified terms, would then constitute) a Corrected Serviced
Loan, together with (to the extent accrued and unpaid) interest on such
Advances, to the extent that (i) such Advance is not reimbursed to the Person
who made such Advance on or before the date, if any, on which such Serviced Loan
becomes a Corrected Serviced Loan and (ii) the amount of such Advance becomes an
obligation of the Mortgagor to pay such amount under the terms of the modified
loan documents. That any amount constitutes all or a portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit the right of
any Person hereunder to determine that such amount instead constitutes a
Nonrecoverable Advance reimbursable in the same manner as any other
Nonrecoverable Advance.
"Workout Fee": With respect to each Corrected Serviced Loan, the
fee designated as such and payable to the Special Servicer pursuant to the
second paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Serviced Loan
as to which a Workout Fee is payable, 1.0% (100 basis points).
Section 1.02 Rules of Construction; Other Definitional
Provisions.
Unless the context otherwise clearly requires:
(a) the definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined;
(b) whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms;
(c) the words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation";
(d) the word "will" shall be construed to have the same meaning and
effect as the word "shall";
(e) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time
amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set
forth herein);
(f) any reference to any Person, or to any Person in a specified
capacity, shall be construed to include such Person's successors
and assigns or such Person's successors in such capacity, as the
case may be;
(g) unless otherwise specified herein, "pro rata" when used in
reference to more than one Class of the Certificates shall mean
"pro rata" based on the outstanding Class Principal Balances of
such Classes of Certificates;
(h) all references in this instrument to designated "Articles",
"Sections", "Subsections", "clauses" and other subdivisions are
to the designated Articles, Sections, Subsections, clauses and
other subdivisions of this Agreement as originally executed; and
(i) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, Section, Subsection or other subdivision.
Section 1.03 Certain Calculations in Respect of the Mortgage
Pool.
(a) All amounts collected by or on behalf of the Trust in respect
of any Cross-Collateralized Set in the form of payments from Mortgagors,
Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds shall be
applied among the Mortgage Loans constituting such Cross-Collateralized Set in
accordance with the express provisions of the related loan documents and, in the
absence of such express provisions, in accordance with the Servicing Standard.
All amounts collected by or on behalf of the Trust in respect of any Serviced
Whole Loan in the form of payments from Mortgagors, Insurance Proceeds,
Condemnation Proceeds and Liquidation Proceeds shall be applied among the
Mortgage Loan and Companion Loan(s) constituting such Serviced Whole Loan in
accordance with the express provisions of the related Intercreditor Agreement
and, in the absence of such express provisions, in accordance with this
Agreement. All amounts collected by or on behalf of the Trust in respect of or
allocable to any particular Mortgage Loan in the form of payments from
Mortgagors, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds
shall be applied to amounts due and owing under the related Mortgage Note and
Mortgage (including for principal and accrued and unpaid interest) in accordance
with the express provisions of the related loan documents and, in the absence of
such express provisions or if and to the extent that such terms authorize the
lender to use its discretion, shall be applied: first, as a recovery of
Nonrecoverable Advances (including interest on such Nonrecoverable Advances) and
Workout-Delayed Reimbursement Amounts that were reimbursed from general
collections on the Mortgage Loans and resulted in principal distributed to the
Certificateholders being reduced as a result of the first proviso in the
definition of "Principal Distribution Amount", and, if applicable, unpaid
related Liquidation Expenses and any outstanding related Additional Trust Fund
Expenses; second, as a recovery of accrued and unpaid interest on such Mortgage
Loan to, but not including, the date of receipt by or on behalf of the Trust
(or, in the case of a full Monthly Payment from any Mortgagor, through the
related Due Date); third, as a recovery of principal of such Mortgage Loan then
due and owing, including by reason of acceleration of the Mortgage Loan
following a default thereunder (or, if a Liquidation Event has occurred in
respect of such Mortgage Loan, as a recovery of principal to the extent of its
entire remaining unpaid principal balance); fourth, unless a Liquidation Event
has occurred in respect of such Mortgage Loan, as a recovery of amounts to be
currently applied to the payment of, or escrowed for the future payment of, real
estate taxes, assessments, insurance premiums, ground rents (if applicable) and
similar items; fifth, unless a Liquidation Event has occurred in respect of such
Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be
held in escrow; sixth, as a recovery of any Prepayment Premium then due and
owing under such Mortgage Loan; seventh, as a recovery of any Default Charges
then due and owing under such Mortgage Loan; eighth, as a recovery of any
assumption fees and modification fees then due and owing under such Mortgage
Loan; ninth, as a recovery of any other amounts then due and owing under such
Mortgage Loan other than remaining unpaid principal; and tenth, as a recovery of
any remaining principal of such Mortgage Loan to the extent of its entire
remaining unpaid principal balance.
(b) Collections by or on behalf of the Trust in respect of each
REO Property, exclusive of amounts to be applied to the payment of the costs of
operating, managing, maintaining and disposing of such REO Property, shall be
treated: first, as a recovery of Nonrecoverable Advances (including interest on
such Nonrecoverable Advance) and Workout-Delayed Reimbursed Amounts with respect
to such REO Loan, that were reimbursed from collections on the Mortgage Loans
and resulted in principal distributed to the Certificateholders being reduced as
a result of the first proviso of the definition of "Principal Distribution
Amount"; second, as a recovery of accrued and unpaid interest on such REO Loan
at the related Mortgage Rate in effect from time to time to but not including
the Due Date in the Collection Period of receipt; third, as a recovery of
principal of such REO Loan to the extent of its entire unpaid principal balance;
fourth, in accordance with the Servicing Standard of the Master Servicer or the
Special Servicer, as applicable, as a recovery of any other amounts due and
owing in respect of such REO Loan; and fifth, as a recovery of any other amounts
deemed to be due and owing in respect of the related REO Loan, in that order. If
either the ChampionsGate Hotel Pari Passu Mortgage Loan or the One Park Avenue
Pari Passu Mortgage Loan becomes an "REO Loan" as defined under the related
Non-Serviced Loan Pooling Agreement, as applicable, the treatment of the
foregoing amounts with respect to such Mortgage Loan shall be subject to the
terms of the related Intercreditor Agreement and the related Non-Serviced Loan
Pooling Agreement.
(c) [RESERVED].
(d) Insofar as amounts received in respect of any Mortgage Loan
or related REO Property and allocable to shared fees and shared charges owing in
respect of such Mortgage Loan or the related REO Loan, as the case may be, that
constitute Additional Master Servicing Compensation payable to the Master
Servicer and/or Additional Special Servicing Compensation payable to the Special
Servicer, are insufficient to cover the full amount of such fees and charges,
such amounts shall be allocated between such of those fees and charges as are
payable to the Master Servicer, on the one hand, and such of those fees and
charges as are payable to the Special Servicer, on the other, pro rata in
accordance with their respective entitlements.
(e) Notwithstanding anything contained herein to the contrary,
with respect to each Mortgage Loan subject to an involuntary prepayment of
principal during a Collection Period, all interest collected during such
Collection Period in connection with such involuntary prepayment of principal
that the related lender would be entitled to retain under the related loan
documents shall be treated as excess interest and shall be used to offset any
shortfalls of interest for the related Distribution Date resulting from
involuntary prepayments of principal during such Collection Period prior to such
shortfalls of interest being allocated to any Class of Certificates. Any such
interest not required to offset shortfalls of interest for the related
Distribution Date pursuant to the immediately preceding sentence shall
constitute Additional Master Servicing Compensation.
(f) The foregoing applications of amounts received in respect of
any Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the appropriate monthly report from the Master Servicer and in the
appropriate monthly Trustee Report as provided in Section 4.02.
(g) For purposes of calculating LIBOR with respect to the Class
A-2FL and Class A-MFL Certificates and each Interest Accrual Period, LIBOR shall
be rounded, if necessary, to the nearest hundred-thousandth of a percentage
point.
If an expense under this Agreement relates in the reasonable
judgment of the Master Servicer, the Special Servicer or the Trustee, as
applicable, primarily to the administration of the Trust Fund, any REMIC formed
hereunder or to any determination respecting the amount, payment or avoidance of
any tax under the REMIC Provisions or the actual payment of any REMIC tax or
expense, or this Agreement states that any expense is solely "an expense of the
Trust Fund" or words of similar import, then such expense shall not be allocated
to, deducted or reimbursed from, or otherwise charged against any Companion Loan
and such Companion Loan Holder shall not suffer any adverse consequences as a
result of the payment of such expense.
Section 1.04 Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that the sets of Mortgage Loans identified on the Mortgage Loan
Schedule as being cross-collateralized with each other are, in the case of each
such particular set of Mortgage Loans, by their terms, cross-defaulted and
cross-collateralized with each other. For purposes of reference only in this
Agreement, and without in any way limiting the servicing rights and powers of
the Master Servicer and/or the Special Servicer, with respect to any
Cross-Collateralized Mortgage Loan (or successor REO Loan), the Mortgaged
Property (or REO Property) that relates or corresponds thereto shall be the
property identified in the Mortgage Loan Schedule as corresponding thereto. The
provisions of this Agreement shall be interpreted in a manner consistent with
this Section 1.04; provided that, if there exists with respect to any
Cross-Collateralized Set only one original of any document referred to in the
definition of "Mortgage File" covering all the Mortgage Loans in such
Cross-Collateralized Set, then the inclusion of the original of such document in
the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Set shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
Section 1.05 Incorporation of Preliminary Statement.
The parties hereto acknowledge that the Preliminary Statement at
the beginning of this Agreement constitutes a part of this Agreement.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law
trust be established pursuant to this Agreement and further such trust be
designated as "Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-3". Xxxxx Fargo Bank, N.A. is hereby
appointed, and does hereby agree to act, as Trustee hereunder and, in such
capacity, to hold the Trust Fund in trust for the exclusive use and benefit of
all present and future Certificateholders. It is not intended that this
Agreement create a partnership or a joint-stock association.
(b) The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, sell, set over and otherwise convey to the
Trustee, in trust, without recourse, for the benefit of the Certificateholders
(and for the benefit of the other parties to this Agreement as their respective
interests may appear) and, in the case of a Serviced Whole Loan, the related
Companion Loan Holder, all the right, title and interest of the Depositor in, to
and under (i) the Mortgage Loans and all documents included in the related
Mortgage Files and Servicing Files, (ii) the Mortgage Loan Purchase and Sale
Agreements and (iii) all other assets included or to be included in the Trust
Fund. Such assignment includes (i) the Mortgage Loans that from time to time are
subject to this Agreement, all interest accrued on the Mortgage Loans on and
after the Cut-off Date and all principal payments received on the Mortgage Loans
after the Cut-off Date (other than principal and interest payments due and
payable on the Mortgage Loans on or before the Cut-off Date, which shall belong
and be promptly remitted to the applicable Mortgage Loan Seller), together with
all documents delivered or caused to be delivered hereunder with respect to such
Mortgage Loans by the related Mortgage Loan Seller; (ii) any REO Property
acquired in respect of a Mortgage Loan; (iii) such funds or assets that from
time to time are deposited into the Certificate Account, the REMIC I
Distribution Account, the REMIC II Distribution Account, the Interest Reserve
Account, the Excess Liquidation Proceeds Account and the REO Account (if
established), and (iv) in the case of a Mortgage Loan included in a Whole Loan,
all the right, title and interest of the Depositor in, to and under the related
Intercreditor Agreement. The conveyance of the ChampionsGate Hotel Pari Passu
Mortgage Loan and the One Park Avenue Pari Passu Mortgage Loan, along with the
right to service each of the ChampionsGate Hotel Pari Passu Mortgage Loan and
the One Park Avenue Pari Passu Mortgage Loan are subject to the terms and
conditions of the related Non-Serviced Loan Pooling Agreement and the related
Intercreditor Agreement. This conveyance is subject to the rights of the
Sub-Servicers pursuant to the Sub-Servicing Agreements, which rights are subject
in any event to this Agreement.
Under United States generally accepted accounting principles, the
Depositor shall report: (i) its acquisition of the Mortgage Loans from the
Mortgage Loan Sellers, pursuant to the Mortgage Loan Purchase and Sale
Agreements, as a purchase of such Mortgage Loans from the Mortgage Loan Sellers;
and (ii) its transfer of the Mortgage Loans to the Trustee, pursuant to this
Section 2.01(b), as a sale of such Mortgage Loans to the Trustee. In connection
with the foregoing, the Depositor shall cause all of its records to reflect such
acquisition as a purchase and such transfer as a sale (in each case, as opposed
to a secured loan).
After the Depositor's transfer of the Mortgage Loans to the
Trustee pursuant to this Section 2.01(b), the Depositor shall not take any
action inconsistent with the Trust's ownership of the Mortgage Loans.
In connection with the Depositor's assignment pursuant to this
Section 2.01(b), the Depositor hereby represents and warrants that it has
contractually obligated the Mortgage Loan Sellers, at the Mortgage Loan Sellers'
expense, pursuant to the Mortgage Loan Purchase and Sale Agreements, to deliver
to and deposit with, or cause to be delivered to and deposited with, the Trustee
or a Custodian appointed thereby, on or before the Closing Date, the Mortgage
File and any Additional Collateral (other than Reserve Funds) for each Mortgage
Loan acquired by the Depositor from the Mortgage Loan Sellers. In addition, with
respect to each Mortgage Loan under which any Additional Collateral is in the
form of a Letter of Credit as of the Closing Date, the Depositor hereby
represents and warrants that it has contractually obligated the Mortgage Loan
Sellers to cause to be prepared, executed and delivered to the issuer of each
such Letter of Credit such notices, assignments and acknowledgments as are
required under such Letter of Credit to assign, without recourse, to the Trustee
the related Mortgage Loan Seller's rights as the beneficiary thereof and drawing
party thereunder; provided that the originals of such Letter of Credit shall be
delivered to the Master Servicer. The Depositor shall deliver to the Trustee on
or before the Closing Date a fully executed counterpart of each Mortgage Loan
Purchase and Sale Agreement. If a Mortgage Loan Seller fails to deliver on or
before the Closing Date, with respect to any related Mortgage Loan so assigned,
a copy of the Mortgage, a copy of any related Ground Lease, the originals and
copies of any related Letters of Credit, the original or a copy of the policy of
lender's title insurance or, if such policy has not yet been issued, a
"marked-up" pro forma title policy or commitment for title insurance marked as
binding and countersigned by the issuer or its authorized agent either on its
face or by an acknowledged closing instruction or escrow letter, or, with
respect to hospitality properties, a copy of the franchise agreement, an
original copy of the comfort letter and any transfer documents with respect to
such comfort letter, the delivery requirements of this Section 2.01(b) shall be
deemed satisfied with respect to such missing document if such Mortgage Loan
Seller delivers such document to the Trustee (or, in the case of originals of
Letters of Credit, to the Master Servicer) within 15 days following the Closing
Date. With respect to the Mortgage Loans so assigned, the Trustee shall provide
a certification within 30 days of the Closing Date that a copy of the Mortgage,
a copy of any related Ground Lease, the originals of any related Letters of
Credit, the original or a copy of the policy of lender's title insurance or, if
such policy has not yet been issued, a "marked-up" pro forma title policy or
commitment for title insurance marked as binding and countersigned by the issuer
or its authorized agent either on its face or by an acknowledged closing
instruction or escrow letter, or, with respect to hospitality properties, a copy
of the franchise agreement, an original copy of the comfort letter and any
transfer documents with respect to such comfort letter due on the Closing Date
have been delivered (with any exceptions noted). None of the Trustee, any
Custodian, the Master Servicer or the Special Servicer shall be liable for any
failure by any Mortgage Loan Seller or the Depositor to comply with the document
delivery requirements of the Mortgage Loan Purchase and Sale Agreements and this
Section 2.01(b).
The conveyance of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and is intended by the parties hereto
to constitute an absolute transfer of such Mortgage Loans and such other related
rights and property by the Depositor to the Trustee for the benefit of the
Certificateholders. Furthermore, it is not intended that such conveyance be a
pledge of security for a loan. If such conveyance is determined to be a pledge
of security for a loan, however, the Depositor and the Trustee intend that the
rights and obligations of the parties to such loan shall be established pursuant
to the terms of this Agreement. The Depositor and the Trustee also intend and
agree that, in such event, (i) this Agreement shall constitute a security
agreement under applicable law, (ii) the Depositor shall be deemed to have
granted to the Trustee (in such capacity) a first priority security interest in
all of the Depositor's right, title and interest in and to the assets
constituting the Trust Fund, including the Mortgage Loans subject hereto from
time to time, all principal and interest received on or with respect to such
Mortgage Loans after the Cut-off Date (other than scheduled payments of interest
and principal due and payable on such Mortgage Loans on or prior to the related
Due Date in July 2007 or, in the case of a Replacement Mortgage Loan, on or
prior to the related date of substitution), all amounts held from time to time
in the Certificate Account, the REMIC I Distribution Account, the REMIC II
Distribution Account, the Interest Reserve Account, the Excess Liquidation
Proceeds Account, REO Account, Class A-2FL Floating Rate Account or Class A-MFL
Floating Rate Account, and all reinvestment earnings on such amounts, and all of
the Depositor's right, title and interest under the Mortgage Loan Purchase and
Sale Agreements, (iii) the possession by the Trustee or its agent of the
Mortgage Notes with respect to the Mortgage Loans subject hereto from time to
time and such other items of property that constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "possession by the
secured party" or possession by a purchaser or person designated by such secured
party for the purpose of perfecting such security interest under applicable law,
and (iv) notifications to, and acknowledgments, receipts or confirmations from,
Persons holding such property shall be deemed to be notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law.
(c) As soon as reasonably possible, and in any event within 90
days after the later of (i) the Closing Date (or, in the case of a Replacement
Mortgage Loan substituted as contemplated by Section 2.03, after the related
date of substitution) and (ii) the date on which all recording information
necessary to complete the subject document is received by the Trustee, the
Trustee shall complete (to the extent necessary), and shall submit for recording
or filing, as the case may be, in the appropriate office for real property
records or UCC Financing Statements, as applicable, each assignment of Mortgage
and assignment of Assignment of Leases (except with respect to any Mortgage or
Assignment of Leases that has been recorded in the name of MERS or its designee)
in favor of the Trustee referred to in clauses (iv) and (v) of the definition of
"Mortgage File" that has been received by the Trustee or a Custodian on its
behalf and each original UCC-2 and UCC-3 in favor of the Trustee referred to in
clause (viii) of the definition of "Mortgage File" that has been received by the
Trustee or a Custodian on its behalf. Upon request of the Master Servicer (if
reasonably necessary for the ongoing administration and/or servicing of the
related Mortgage Loan by the Master Servicer) and at the expense of the related
Mortgage Loan Seller, the Trustee shall forward to the Master Servicer a copy of
any such assignment that has been received by the Trustee. Each such assignment
shall reflect that it should be returned by the public recording office to the
Trustee following recording, and each such UCC-2 and UCC-3 shall reflect that
the file copy thereof should be returned to the Trustee following filing;
provided that in those instances where the public recording office retains the
original assignment of Mortgage or assignment of Assignment of Leases the
Trustee shall obtain therefrom a certified copy of the recorded original at the
expense of the related Mortgage Loan Seller. The Trustee may assume for purposes
of recordation of each UCC-2 and UCC-3 that the Mortgage File containing the
related UCC-1 includes one state level UCC Financing Statement filing in the
state of incorporation of the related Borrower for each Mortgaged Property (or
with respect to any Mortgage Loan that has two or more related Borrowers, the
state of incorporation of each such Borrower). Each Mortgage Loan Seller will
deliver to the Trustee the UCC Financing Statements, completed pursuant to
Revised Article 9 of the UCC, on the new national forms, in recordable form, to
be recorded pursuant to this Section 2.01(c). The Trustee will submit such UCC
Financing Statements for filing in the state of incorporation as so indicated on
the documents provided. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Trustee shall direct the related Mortgage Loan Seller to prepare or cause to be
prepared promptly, pursuant to the related Mortgage Loan Purchase and Sale
Agreement, a substitute therefor or cure such defect, as the case may be, and
thereafter the Trustee shall, upon receipt thereof, cause the same to be duly
recorded or filed, as appropriate with any re-recording, re-filing or rejection
expenses at the expense of such Mortgage Loan Seller. If such Mortgage Loan
Seller has been so notified and has not prepared a substitute document or cured
such defect, as the case may be, within 60 days, the Trustee shall promptly
notify the Master Servicer, the Special Servicer, the Rating Agencies, the
related Companion Loan Holder (if a Whole Loan is involved and the Trustee has
knowledge of such Companion Loan Holder) and the Directing Certificateholder.
Such Mortgage Loan Seller shall be responsible for paying the reasonable fees
and out-of-pocket expenses of the Trustee in connection with the
above-referenced recording and filing of documents insofar as it relates to the
Mortgage Loans transferred by such Mortgage Loan Seller and acquired by the
Depositor from such Mortgage Loan Seller, all as more particularly provided for
in the related Mortgage Loan Purchase and Sale Agreement.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(b), the Depositor hereby represents and warrants that it has
contractually obligated each Mortgage Loan Seller, at such Mortgage Loan
Seller's expense, pursuant to the related Mortgage Loan Purchase and Sale
Agreement, to deliver to and deposit with, or cause to be delivered to and
deposited with, the Master Servicer or its designee, on or before the Closing
Date, the following items: (i) asset summaries delivered to the Rating Agencies,
originals or copies of all financial statements, appraisals,
environmental/engineering reports, leases, rent rolls and tenant estoppels in
the possession or under the control of such Mortgage Loan Seller that relate to
the Mortgage Loans transferred by such Mortgage Loan Seller to the Depositor
and, to the extent they are not required to be a part of a Mortgage File in
accordance with the definition thereof, originals or copies of all documents,
certificates, letters of credit, environmental insurance policies and related
endorsements, and opinions in the possession or under the control of such
Mortgage Loan Seller that were delivered by or on behalf of the related
Mortgagors in connection with the origination of such Mortgage Loans and that
are reasonably required for the ongoing administration and servicing of such
Mortgage Loans (except to the extent such items represent draft documents,
internal notes, attorney-client privileged communications or credit analyses);
and (ii) all unapplied Reserve Funds and Escrow Payments in the possession or
under the control of such Mortgage Loan Seller that relate to, and that are
required for the ongoing administration and servicing of, the Mortgage Loans
transferred by such Mortgage Loan Seller to the Depositor. The Master Servicer
shall hold all such documents, records and funds on behalf of the Trustee in
trust for the benefit of the Certificateholders.
(e) In the event a Mortgage Loan is repurchased by the related
Mortgage Loan Seller, where applicable, the Trustee shall re-assign any rights
that such Mortgage Loan Seller had with respect to representations and
warranties made by a third party originator to such Mortgage Loan Seller under
the related Mortgage Loan Purchase and Sale Agreement in respect of any such
Mortgage Loan.
Section 2.02 Acceptance of REMIC I by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt by it or a Custodian on its behalf of, subject to the
provisions of Section 2.01 and to the further review provided for in this
Section 2.02, and further subject to the Schedule of Exceptions attached hereto
as Schedule III, with respect to each Mortgage Loan, an original Mortgage Note
endorsed to the Trustee and declares that it or a Custodian on its behalf holds
and will hold the documents delivered or caused to be delivered by the Mortgage
Loan Sellers in respect of the Mortgage Loans, and that it holds and will hold
all other assets included in REMIC I in trust for the exclusive use and benefit
of all present and future Certificateholders and the Trustee as holder of the
REMIC I Regular Interests, Class A-2FL Regular Interest and Class A-MFL Regular
Interest. To the extent that the Mortgage File for a Mortgage Loan included in a
Serviced Whole Loan relates to the Mortgage Loan as well as the related
Companion Loan, the Trustee shall also hold such Mortgage File for the use and
benefit of the related Companion Loan Holder.
(b) On or about the ninetieth day following the Closing Date, the
Trustee or a Custodian on its behalf shall review the documents delivered to it
or such Custodian with respect to each Mortgage Loan, and the Trustee shall,
subject to Section 1.04, Section 2.02(c) and Section 2.02(d), certify
electronically or in writing (substantially in the form of Exhibit F) to each of
the other parties hereto, the Mortgage Loan Sellers, the related Companion Loan
Holder (if a Whole Loan is involved and the Trustee has knowledge of such
Companion Loan Holder) and the Directing Certificateholder, that, as to each
Mortgage Loan then subject to this Agreement (except as specifically identified
in any exception report annexed to such certification): (i) the original
Mortgage Note specified in clause (i) of the definition of "Mortgage File" and
all allonges thereto, if any (or a copy of such Mortgage Note, together with a
lost note affidavit certifying that the original of such Mortgage Note has been
lost), the original or copy of documents specified in clauses (ii) through (vii)
and (xii) of the definition of "Mortgage File" (without regard to the
parentheticals relating to such clauses), have been received by it or a
Custodian on its behalf; (ii) if such report is due more than 180 days after the
Closing Date, the recordation/filing contemplated by Section 2.01(c) has been
completed (based solely on receipt by the Trustee of the particular
recorded/filed documents); (iii) all documents received by it or any Custodian
with respect to such Mortgage Loan have been reviewed by it or by such Custodian
on its behalf and (A) appear regular on their face (handwritten additions,
changes or corrections shall not constitute irregularities if initialed by the
Mortgagor), (B) appear to have been executed and (C) purport to relate to such
Mortgage Loan; and (iv) the Trustee on behalf of the Trust is shown as the owner
of each Mortgage recorded in the name of MERS or its designee. The Trustee may
assume that, for purposes of reviewing the items in clause (viii) of the
definition of Mortgage File and completing the certification attached hereto as
Exhibit F, the related UCC-1 includes one state level UCC Financing Statement
filing in the state of incorporation of the related Borrower for each Mortgaged
Property (or with respect to any Mortgage Loan that has two or more related
Borrowers, the state of incorporation of each such Borrower). If any exceptions
are noted or if the recordation/filing contemplated by Section 2.01(c) has not
been completed (based solely on receipt by the Trustee of the particular
documents showing evidence of the recordation/filing), the Trustee shall every
90 days after the ninetieth day following the Closing Date until the earliest of
(i) the date on which such exceptions are eliminated and such recordation/filing
has been completed, (ii) the date on which all the Defective Mortgage Loans are
removed from the Trust Fund, and (iii) the second anniversary of the Closing
Date), distribute an updated exception report to the recipients of the above
mentioned certification that was submitted to such recipients substantially in
the form of Exhibit F. At any time subsequent to the second anniversary of the
Closing Date, the Trustee shall, upon request and at the requesting party's
expense, prepare and deliver to the requesting party (including any
Certificateholder or Certificate Owner) an updated version of the exception
report provided for in the prior sentence.
(c) If a Mortgage Loan Seller substitutes a Replacement Mortgage
Loan for any Defective Mortgage Loan as contemplated by Section 2.03, the
Trustee or a Custodian on its behalf shall review the documents delivered to it
or such Custodian with respect to such Replacement Mortgage Loan, and the
Trustee shall deliver a certification comparable to that described in the prior
paragraph, in respect of such Replacement Mortgage Loan, on or about the
thirtieth day following the related date of substitution (and, if any exceptions
are noted, every 90 days thereafter until the earliest of (i) the date on which
such exceptions are eliminated and all related recording/filing has been
completed, (ii) the date on which such Replacement Mortgage Loan is removed from
the Trust Fund and (iii) the second anniversary of the date on which such
Replacement Mortgage Loan was added to the Trust Fund). At any time subsequent
to the second anniversary of the date on which such Replacement Mortgage Loan is
added to the Trust Fund, the Trustee shall, upon request, prepare and deliver to
the requesting party (including any Certificateholder or Certificate Owner) an
updated version of the exception report provided for in the prior sentence.
(d) None of the Trustee, the Master Servicer, the Special
Servicer or any Custodian is under any duty or obligation (i) to determine
whether any of the documents specified in clauses (iii), (v), (vi) and (viii)
through (xii) of the definition of "Mortgage File" exist or are required to be
delivered by the Mortgage Loan Sellers in respect of any Mortgage Loan, or (ii)
to inspect, review or examine any of the documents, instruments, certificates or
other papers relating to the Mortgage Loans delivered to it to determine that
the same are valid, legal, effective, genuine, binding, enforceable, sufficient
or appropriate for the represented purpose or that they are other than what they
purport to be on their face. Notwithstanding the foregoing, with respect to
Letters of Credit constituting Additional Collateral referenced in clause (xi)
of the definition of "Mortgage File" the Trustee shall perform the review set
forth in Sections 2.02(b)(iii)(A) through (C). Furthermore, except as expressly
provided in Section 2.02(b), none of the Trustee, the Master Servicer, the
Special Servicer or any Custodian shall have any responsibility for determining
whether the text of any assignment or endorsement is in proper or recordable
form, whether the requisite recording of any document is in accordance with the
requirements of any applicable jurisdiction, or whether a blanket assignment is
permitted in any applicable jurisdiction.
(e) In performing the reviews contemplated by subsections (b) and
(c) of this Section 2.02, the Trustee may conclusively rely on the Mortgage Loan
Sellers as to the purported genuineness of any such document and any signature
thereon. It is understood that the scope of the Trustee's review of the Mortgage
Files is limited solely to confirming that the documents specified in clauses
(i) through (v) and clause (vii) of the definition of "Mortgage File", have been
received and such additional information as will be necessary for delivering the
certifications required by subsections (a) and (b) of this Section 2.02. If a
Mortgage Loan Seller is notified of or discovers any error in a Mortgage Loan
Checklist, then such Mortgage Loan Seller shall amend such Mortgage Loan
Checklist within 180 days and distribute such Mortgage Loan Checklist to each of
the other parties hereto; provided, however, an error in such Mortgage Loan
Checklist by itself shall not be deemed to be a Material Breach or Material
Document Defect. Such new, corrected Mortgage Loan Checklist shall be deemed to
amend and replace the existing Mortgage Loan Checklist; provided, however, the
correction or amendment of such Mortgage Loan Checklist by itself shall not be
deemed to be a cure of a Material Breach or Material Document Defect.
Section 2.03 Mortgage Loan Seller's Repurchase or Substitution of Mortgage Loans
for Material Document Defects and Material Breaches.
(a) If any party hereto discovers, or receives written notice from a non-party,
that a Document Defect or Breach exists with respect to any Mortgage Loan, then
such party shall give prompt written notice thereof to the other parties hereto,
including (unless it is the party that discovered the Document Defect or Breach)
the Trustee. Upon the Trustee's discovery or receipt of notice that a Document
Defect or Breach exists with respect to any Mortgage Loan, the Trustee shall
notify the Directing Certificateholder, the related Companion Loan Holder (if a
Whole Loan is involved and the Trustee has knowledge of such Companion Loan
Holder), and the related Mortgage Loan Seller.
(b) If necessary, the Trustee shall request the related Mortgage
Loan Seller to comply with Section 4(c) of the related Mortgage Loan Purchase
and Sale Agreement with respect to any Document Defect or other deficiency in a
Mortgage File relating to a Mortgage Loan. If the Trustee becomes aware of any
failure on the part of any Mortgage Loan Seller to do so, the Trustee shall
promptly notify the Master Servicer and the Special Servicer.
(c) Promptly upon its becoming aware of any Material Document
Defect or Material Breach with respect to any Mortgage Loan, the Master Servicer
shall (and the Special Servicer may) notify the related Mortgage Loan Seller in
writing of such Material Document Defect or Material Breach, as the case may be,
and direct such Mortgage Loan Seller that it must, not later than 90 days from
the receipt by such parties of such notice (such 90-day period, the "Initial
Resolution Period"), correct or cure such Material Document Defect or Material
Breach, as the case may be, in all material respects, or repurchase the
Defective Mortgage Loan (as, if and to the extent required by the related
Mortgage Loan Purchase and Sale Agreement), at the applicable Purchase Price;
provided, however, if such Mortgage Loan Seller certifies in writing to the
Trustee (i) that, as evidenced by an accompanying Opinion of Counsel, any such
Material Breach or Material Document Defect, as the case may be, does not and
will not cause the Defective Mortgage Loan, to fail to be a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code, (ii) that such Material
Breach or Material Document Defect, as the case may be, is capable of being
corrected or cured but not within the applicable Initial Resolution Period,
(iii) that such Mortgage Loan Seller has commenced and is diligently proceeding
with the cure of such Material Breach or Material Document Defect, as the case
may be, within the applicable Initial Resolution Period and (iv) that such
Mortgage Loan Seller anticipates that such Material Breach or Material Document
Defect, as the case may be, will be corrected or cured within an additional
period not to exceed the Resolution Extension Period (a copy of which
certification shall be delivered by the Trustee to the Master Servicer, the
Special Servicer, the Directing Certificateholder, and the related Companion
Loan Holder (if a Whole Loan is involved and the Trustee has knowledge of such
Companion Loan Holder), then such Mortgage Loan Seller shall have an additional
period equal to the applicable Resolution Extension Period to complete such
correction or cure or, failing such, to repurchase the Defective Mortgage Loan;
provided, further, in lieu of effecting any such repurchase (but, in any event,
no later than such repurchase would have to have been completed), such Mortgage
Loan Seller shall be permitted, during the three-month period following the
Startup Day for REMIC I (or during the two-year period following such Startup
Day if the Defective Mortgage Loan is a "defective obligation" within the
meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations
Section 1.860G-2(f)), to replace the Defective Mortgage Loan, other than a
Non-Serviced Mortgage Loan, with one or more Qualifying Substitute Mortgage
Loans and to pay a cash amount equal to the applicable Substitution Shortfall
Amount, subject to any other applicable terms and conditions of the related
Mortgage Loan Purchase and Sale Agreement and this Agreement. If any
substitution for a Deleted Mortgage Loan is not completed in all respects by the
end of the three-month (or, if applicable, the two-year) period contemplated by
the preceding sentence, such Mortgage Loan Seller shall be barred from doing so
(and, accordingly, will be limited to the cure/repurchase remedies contemplated
hereby), and no party hereto shall be liable thereto for any loss, liability or
expense resulting from the expiration of such period. If any Mortgage Loan is to
be repurchased or replaced as contemplated by this Section 2.03, the Master
Servicer shall designate the Certificate Account as the account to which funds
in the amount of the applicable Purchase Price or Substitution Shortfall Amount
(as the case may be) are to be wired, and the Master Servicer shall promptly
notify the Trustee when such deposit is made. Any such repurchase or replacement
of a Mortgage Loan shall be on a whole loan, servicing released basis.
(d) If one or more of the Mortgage Loans constituting a
Cross-Collateralized Set are the subject of a Breach or Document Defect, then,
for purposes of (i) determining whether such Breach or Document Defect is a
Material Breach or Material Document Defect, as the case may be, and (ii) the
application of remedies, such Cross-Collateralized Set shall be treated as a
single Mortgage Loan.
If (x) any Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 2.03, (y) such Mortgage Loan is a
Crossed-Collateralized Mortgage Loan or is secured by a portfolio of Mortgaged
Properties and the related loan documents provide that a Mortgaged Property may
be uncrossed from the other Mortgaged Properties in that portfolio, and (z) the
applicable Material Breach or Material Document Defect does not constitute a
Material Breach or Material Document Defect, as the case may be, as to any
related Crossed-Collateralized Mortgage Loan or applies to only specific
Mortgaged Properties included in such portfolio (without regard to this
paragraph), then the applicable Material Breach or Material Document Defect (as
the case may be) will be deemed to constitute a Material Breach or Material
Document Defect (as the case may be) as to any related Crossed-Collateralized
Mortgage Loan and to each other Mortgaged Property included in such portfolio
and the related Mortgage Loan Seller shall repurchase or substitute for any
related Crossed-Collateralized Mortgage Loan in the manner described above
unless, in the case of a Material Breach or Material Document Defect, both of
the following conditions would be satisfied if such Mortgage Loan Seller were to
repurchase or substitute for only the affected Crossed-Collateralized Mortgage
Loans or affected Mortgaged Properties as to which a Material Breach or Material
Document Defect had occurred without regard to this paragraph: (i) the debt
service coverage ratio for any related Cross-Collateralized Mortgage Loans or
Mortgaged Properties for the four calendar quarters immediately preceding the
repurchase or substitution is not less than the greater of (a) the debt service
coverage ratio immediately prior to the repurchase, and (b) the debt service
coverage ratio on the Closing Date, subject to a floor of 1.25x, and (ii) the
loan-to-value ratio for any related Crossed-Collateralized Mortgage Loans or
Mortgaged Properties is not greater than the lesser of (a) the loan-to-value
ratio immediately prior to the repurchase and (b) the loan-to-value ratio on the
Closing Date, subject to a cap of 75%. In the event that both of the conditions
set forth in the preceding sentence would be satisfied, the related Mortgage
Loan Seller may elect either to repurchase or substitute for only the affected
Crossed-Collateralized Mortgage Loan or Mortgaged Properties as to which the
Material Breach or Material Document Defect exists or to repurchase or
substitute for the aggregate Crossed-Collateralized Mortgage Loans or Mortgaged
Properties.
To the extent that the related Mortgage Loan Seller repurchases
or substitutes for an affected Cross-Collateralized Mortgage Loan or Mortgaged
Property in the manner prescribed above while the Trustee continues to hold any
related Cross-Collateralized Mortgage Loans, such Mortgage Loan Seller and the
Depositor shall either uncross the repurchased Cross-Collateralized Mortgage
Loan or affected Mortgaged Property (provided the Depositor has received an
Opinion of Counsel that uncrossing the repurchased Cross-Collateralized Mortgage
Loan will not adversely affect the status of either REMIC I or REMIC II as a
REMIC under the Code) or shall forbear from enforcing any remedies against the
other's Primary Collateral, but each is permitted to exercise remedies against
the Primary Collateral securing its respective affected Cross-Collateralized
Mortgage Loans or Mortgaged Properties, including, with respect to the Trustee,
the Primary Collateral securing Mortgage Loans still held by the Trustee, so
long as such exercise does not materially impair the ability of the other party
to exercise its remedies against its Primary Collateral. If the exercise of
remedies by one party would materially impair the ability of the other party to
exercise its remedies with respect to the Primary Collateral securing the
Cross-Collateralized Mortgage Loans or Mortgaged Properties held by such party,
then both parties shall forbear from exercising such remedies until the loan
documents can be modified to remove the threat of such impairment as a result of
the exercise of remedies.
(e) Whenever one or more mortgage loans are substituted for a
Defective Mortgage Loan by the related Mortgage Loan Seller as contemplated by
this Section 2.03, the Master Servicer shall direct such party effecting the
substitution to deliver the related Mortgage File to the Trustee, to certify
that such substitute mortgage loan satisfies or such substitute mortgage loans
satisfy, as the case may be, all of the requirements of the definition of
"Qualifying Substitute Mortgage Loan" and to send such certification to the
Trustee. No mortgage loan may be substituted for a Defective Mortgage Loan as
contemplated by this Section 2.03 if the Mortgage Loan to be replaced was itself
a Replacement Mortgage Loan, in which case, absent a cure of the relevant
Material Breach or Material Document Defect, the Defective Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each corresponding
Deleted Mortgage Loan (if any) after the related Due Date in July 2007 and on or
prior to the related date of substitution, shall be part of the Trust Fund.
Monthly Payments due with respect to each Replacement Mortgage Loan (if any) on
or prior to the related date of substitution, and Monthly Payments due with
respect to each corresponding Deleted Mortgage Loan (if any) after the related
date of substitution, shall not be part of the Trust Fund and are to be remitted
by the Master Servicer to the party effecting the related substitution promptly
following receipt.
(f) If any Mortgage Loan is to be repurchased or replaced by the related
Mortgage Loan Seller as contemplated by this Section 2.03, the Master Servicer
shall direct such Mortgage Loan Seller to amend the related Mortgage Loan
Schedule to reflect the removal of any Deleted Mortgage Loan and, if applicable,
the substitution of the related Replacement Mortgage Loan(s); and, upon its
receipt of such amended Mortgage Loan Schedule, the Master Servicer shall
deliver or cause the delivery of such amended Mortgage Loan Schedule to the
other parties hereto. Upon any substitution of one or more Replacement Mortgage
Loans for a Deleted Mortgage Loan, such Replacement Mortgage Loan(s) shall
become part of the Trust Fund and be subject to the terms of this Agreement in
all respects.
(g) Upon receipt of a Request for Release (in the form of Exhibit
D attached hereto) and an Officer's Certificate from the Master Servicer to the
effect that the full amount of the Purchase Price or Substitution Shortfall
Amount (as the case may be) for any Mortgage Loan repurchased or replaced by the
related Mortgage Loan Seller as contemplated by this Section 2.03 has been
deposited into the Certificate Account, and further, if applicable, upon receipt
of the Mortgage File for each Replacement Mortgage Loan (if any) to be
substituted for a Deleted Mortgage Loan, together with the certification
referred to in Section 2.03(e) from the party effecting the substitution, if
any, the Trustee shall (i) release or cause the release of the Mortgage File and
any Additional Collateral held by or on behalf of the Trustee for the Deleted
Mortgage Loan to the party effecting the repurchase/substitution or its designee
and (ii) execute and deliver such instruments of release, transfer and/or
assignment, in each case without recourse, as shall be provided to it and are
reasonably necessary to vest in the party effecting the repurchase/substitution
or its designee the ownership of the Deleted Mortgage Loan, and the Master
Servicer shall notify the applicable Mortgagors of the transfers of the Deleted
Mortgage Loan(s) and any Replacement Mortgage Loan(s). If the Mortgage related
to the Deleted Mortgage Loan has been recorded in the name of MERS or its
designee, the Master Servicer shall take all necessary action to reflect the
release of such Mortgage on the records of MERS. In connection with any such
repurchase or substitution by the related Mortgage Loan Seller, each of the
Master Servicer and the Special Servicer shall deliver to the party effecting
the repurchase/substitution or its designee any portion of the related Servicing
File, together with any Escrow Payments, Reserve Funds and Additional
Collateral, held by or on behalf of the Master Servicer or the Special Servicer,
as the case may be, with respect to the Deleted Mortgage Loan, in each case at
the expense of the party effecting the repurchase/substitution. The reasonable
"out-of-pocket" costs and expenses incurred by the Master Servicer, the Special
Servicer and/or the Trustee pursuant to this Section 2.03(g), shall be payable
to each of them: first, by the related Mortgage Loan Seller to the extent such
Mortgage Loan Seller was required to repurchase the Defective Mortgage Loan and
then as Servicing Advances in respect of the Defective Mortgage Loan.
(h) The applicable Mortgage Loan Purchase and Sale Agreement
provides the sole remedy available to the Certificateholders, or the Trustee on
their behalf, respecting any Breach or Document Defect with respect to Mortgage
Loans sold by the related Mortgage Loan Seller. If the related Mortgage Loan
Seller defaults on its obligations to repurchase or replace any Mortgage Loan as
contemplated by this Section 2.03, the Master Servicer shall (and the Special
Servicer may) promptly notify the Trustee in writing, and the Trustee shall
notify the Certificateholders. Thereafter, the Master Servicer (with respect to
Performing Serviced Loans where the defaulting Mortgage Loan Seller is not an
Affiliate of the Master Servicer) and the Special Servicer (with respect to
Specially Serviced Loans and with respect to Performing Serviced Loans where the
defaulting Mortgage Loan Seller is an Affiliate of the Master Servicer) shall
take such actions on behalf of the Trust with respect to the enforcement of such
repurchase/substitution obligations (and if the Master Servicer is notified or
otherwise becomes aware of a default on the part of such Mortgage Loan Seller in
respect of its obligations under Section 4 of the related Mortgage Loan Purchase
and Sale Agreement, the Master Servicer shall also take such actions on behalf
of the Trust with respect to the enforcement of such obligations of such
Mortgage Loan Seller), including the institution and prosecution of appropriate
legal proceedings, as the Master Servicer or the Special Servicer shall
determine are in the best interests of the Certificateholders (taken as a
collective whole). Any and all reasonable "out-of-pocket" costs and expenses
incurred by the Master Servicer, the Special Servicer and/or the Trustee
pursuant to this Section 2.03(h), including reasonable attorney fees and
expenses to the extent not collected from such Mortgage Loan Seller because such
Mortgage Loan Seller either failed, or was not required, to cure the subject
actual or alleged Breach or Document Defect or repurchase/replace the affected
related Mortgage Loan, shall constitute Servicing Advances in respect of the
affected Mortgage Loan.
Without limiting the Trustee's duties under this Section 2.03,
the Trustee irrevocably designates the Special Servicer, with respect to the
Specially Serviced Loans, and the Master Servicer, with respect to Performing
Serviced Loans, for the benefit of Certificateholders to use reasonable efforts
to enforce, after notice to the Trustee, any of the obligations of a Mortgage
Loan Seller under the related Mortgage Loan Purchase and Sale Agreement. Such
enforcement including, without limitation, the legal prosecution of claims,
shall be carried out in such form, to such extent and at such time as the
Special Servicer or Master Servicer, as the case may be, shall reasonably
determine is in the best interests of the Certificateholders (taken as a
collective whole). All out-of-pocket expenses (including attorney's fees and
litigation costs and expenses) incurred by the Special Servicer or Master
Servicer, as the case may be, in carrying out its obligations hereunder shall be
reimbursable to the Special Servicer or Master Servicer, as the case may be, and
constitute Additional Trust Fund Expenses. The Trustee shall upon request
promptly furnish or cause to be furnished to the Special Servicer or Master
Servicer, as the case may be, limited powers of attorney and other documents
necessary, delivered to it by the Special Servicer or Master Servicer, as the
case may be, for execution, or appropriate to enable the Special Servicer or
Master Servicer, as the case may be, to carry out such enforcement duties
subject to Section 3.01(c).
(i) In the event that either pursuant to a settlement agreed to
by a Mortgage Loan Seller and the Special Servicer on behalf of the Trust (it
being understood that the provisions of this Section 2.03(i) shall not
constitute a waiver of the Trust's rights under Section 2.03(h) unless the
Special Servicer, on behalf of the Trust, has agreed to accept a loss of value
payment in lieu of the Trust's rights under Section 2.03(h)) or a judicial
order, such Mortgage Loan Seller makes a cash payment, either as a cure of a
Material Breach or a Material Defect, or in lieu of a repurchase of a Mortgage
Loan on which a Material Breach or a Material Defect exists or is alleged to
exist (each such payment, a "Loss of Value Payment") with respect to such
Mortgage Loan, the amount of each such Loss of Value Payment shall be determined
either (i) by mutual agreement of the Special Servicer on behalf of the Trust
with respect to such Material Breach or Material Defect, as the case may be, and
such Mortgage Loan Seller or (ii) by judicial decision. Provided that such Loss
of Value Payment is made, the Loss of Value Payment shall serve as the sole
remedy available to the Certificateholders and the Trustee on their behalf
regarding any such Material Breach or Material Defect in lieu of any obligation
of the related Mortgage Loan Seller to otherwise cure such Material Breach or
Material Defect or repurchase the Defective Mortgage Loan based on such Material
Breach or Material Defect under any circumstances. In the event there is a Loss
of Value Payment made by a Mortgage Loan Seller in accordance with this Section
2.03(i), the amount of such Loss of Value Payment shall be deposited into the
Loss of Value Reserve Fund to be applied in accordance with Section 3.05(g).
Section 2.04 Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the
other parties to this Agreement and for the benefit of the Certificateholders
and, in the case of a Whole Loan, the holder of the related Companion Loan, as
of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the
Depositor, and the performance and compliance with the terms of this
Agreement by the Depositor, do not violate the Depositor's certificate of
incorporation or bylaws 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 instrument to
which it is a party or that is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Depositor, enforceable against the
Depositor in accordance with the terms hereof, except as such enforcement
may be limited by (A) applicable bankruptcy, insolvency, receivership,
reorganization, liquidation, fraudulent transfer, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement do not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Depositor's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Depositor to perform its obligations under this Agreement or the
financial condition of the Depositor.
(vi) The transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer
or similar law in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that would prohibit the
Depositor from entering into this Agreement or, in the Depositor's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Depositor to perform its obligations
under this Agreement or the financial condition of the Depositor.
(viii) Immediately prior to the transfer of the Mortgage Loans by
the Depositor to the Trustee hereunder, the Depositor had good and
marketable title to, and was the sole owner of, each such Mortgage Loan,
free and clear of any and all liens, encumbrances and other interests on,
in or to such Mortgage Loan.
(ix) No consent, approval, authorization or order of, or filing
or registration with, any state or federal court or governmental agency
or body is required for the consummation by the Depositor of the
transactions contemplated herein, except for those consents, approvals,
authorizations and orders that previously have been obtained and those
filings and registrations that previously have been completed, and except
for those filings and recordings of loan documents and assignments
thereof that are contemplated by this Agreement to be completed after the
Closing Date.
(x) The Depositor has been solvent at all relevant times prior
to, and will not be rendered insolvent by, its transfer of the Mortgage
Loans to the Trustee, pursuant to Section 2.01(b).
(xi) After giving effect to its transfer of the Mortgage Loans to
the Trustee, pursuant to Section 2.01(b), the value of the Depositor's
assets, either taken at their present fair saleable value or at fair
valuation, will exceed the amount of the Depositor's debts and
obligations, including contingent and unliquidated debts and obligations
of the Depositor, and the Depositor will not be left with unreasonably
small assets or capital with which to engage in and conduct its business.
(xii) The Depositor does not intend to, and does not believe that
it will, incur debts or obligations beyond its ability to pay such debts
and obligations as they mature.
(xiii) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Depositor are pending or contemplated.
(xiv) Immediately prior to the transfer of the Mortgage Loans to
the Trustee for the benefit of the Certificateholders pursuant to this
Agreement, the Depositor had such right, title and interest in and to
each Mortgage Loan as was transferred to it by the related Mortgage Loan
Seller pursuant to the related Mortgage Loan Purchase and Sale Agreement.
The Depositor has not transferred any of its right, title and interest in
and to the Mortgage Loans to any Person other than the Trustee.
(xv) Except for any actions that are the express responsibility
of another party hereunder or under any Mortgage Loan Purchase and Sale
Agreement, and further except for actions that the Depositor is expressly
permitted to complete subsequent to the Closing Date, the Depositor has
taken all actions required under applicable law to effectuate the
transfer of all of its right, title and interest in and to the Mortgage
Loans by the Depositor to the Trustee.
(b) Upon discovery by any of the parties hereto of a breach of
any of the foregoing representations and warranties that materially and
adversely affects the interests of the Certificateholders or any party hereto,
the party discovering such breach shall give prompt written notice to each of
the other parties hereto.
Section 2.05 Representations and Warranties of the Master
Servicer.
(a) The Master Servicer hereby represents and warrants to the
other parties hereto and for the benefit of the Certificateholders and, in the
case of a Whole Loan, the related Companion Loan Holder, as of the Closing Date,
that:
(i) The Master Servicer is duly organized, validly existing and
in good standing as a national banking association under the laws of the
United States of America, and the Master Servicer is in compliance with
the laws of each jurisdiction 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, do 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 instrument to
which it is a party or that is applicable to it or any of its assets,
which default or breach, 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.
(iii) The Master Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, conservatorship, receivership,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with
the terms of this Agreement do not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Master Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
(vi) 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 either the ability of the Master Servicer
to perform its obligations under this Agreement or the financial
condition of the Master Servicer.
(vii) Each officer or employee of the Master Servicer that has
responsibilities concerning the servicing and administration of the
Serviced Loans is covered by errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(c). None of the
Master Servicer or any of its officers or employees that is involved in
the servicing or administration of the Serviced Loans has been refused
such coverage or insurance.
(viii) No consent, approval, authorization or order of, or filing
or registration with, any state or federal court or governmental agency
or body is required for the consummation by the Master Servicer of the
transactions contemplated herein, except for those consents, approvals,
authorizations and orders that previously have been obtained and those
filings and registrations that previously have been completed.
(ix) The Master Servicer has examined each of the Sub-Servicing
Agreements entered into by the Master Servicer that will be in effect as
of the Closing Date with respect to the Serviced Loans, and each such
Sub-Servicing Agreement complies with the requirements of Section 3.22(a)
in all material respects.
(b) The representations and warranties of the Master Servicer set
forth in Section 2.05(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Master Servicer (if any) shall be deemed to
have made, as of the date of its succession, each of the representations set
forth in Section 2.05(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 2.05(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
Section 2.06 Representations and Warranties of the Special
Servicer.
(a) The Special Servicer hereby represents and warrants to the
other parties hereto and for the benefit of the Certificateholders and, in the
case of a Whole Loan, the related Companion Loan Holder, as of the Closing Date,
that:
(i) The Special Servicer is duly organized, validly existing and
in good standing as a corporation under the laws of the State of
Delaware, and the Special Servicer is in compliance with the laws of each
jurisdiction in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, do not violate the Special 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 instrument to
which it is a party or that is applicable to it or any of its assets,
which default, in the Special Servicer's reasonable judgment, is likely
to materially and adversely effect either the ability of the Special
Servicer to perform its obligations under this Agreement or the financial
condition of the Special Servicer.
(iii) The Special Servicer has the full corporate power and
authority to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, except as such
enforcement may be limited by (A) applicable bankruptcy, receivership,
insolvency, reorganization, liquidation, fraudulent transfer, moratorium
and other laws affecting the enforcement of creditors' rights generally,
and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement do not constitute a violation
of, any law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Special Servicer's good
faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Special Servicer to perform its
obligations under this Agreement or the financial condition of the
Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer, the
outcome of which in the Special Servicer's reasonable judgment, is likely
to materially and adversely affect either the ability of the Special
Servicer to perform its obligations under this Agreement or the financial
condition of the Special Servicer.
(vii) Each officer or employee of the Special Servicer that has
responsibilities concerning the servicing and administration of the
Serviced Loans is covered by errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(c).
(viii) No consent, approval, authorization or order of, or filing
or registration with, any state or federal court or governmental agency
or body is required for the consummation by the Special Servicer of the
transactions contemplated herein, except for those consents, approvals,
authorizations and orders that previously have been obtained and those
filings and registrations that previously have been completed.
(b) The representations and warranties of the Special Servicer
set forth in Section 2.06(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Special Servicer (if any) shall be deemed to
have made, as of the date of its succession, each of the representations set
forth in Section 2.06(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 2.06(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
Section 2.07 Representations and Warranties of the Trustee and
the REMIC Administrator.
(a) Xxxxx Fargo Bank, N.A., both in its capacity as Trustee and
in its capacity as REMIC Administrator (the "Bank"), hereby represents and
warrants to the other parties hereto and for the benefit of the
Certificateholders and, in the case of a Whole Loan, the related Companion Loan
Holder, as of the Closing Date, that:
(i) The Bank is a national bank duly organized, validly existing
and in good standing under the laws of the United States and is, shall be
or, if necessary, shall appoint a co-trustee that is, in compliance with
the laws of each jurisdiction in which any Mortgaged Property is located
to the extent necessary to ensure the enforceability of each Loan and to
perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Bank,
and the performance and compliance with the terms of this Agreement by
the Bank, do not violate the Bank'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 instrument to which it is a party or that is
applicable to it or any of its assets, which default, in the Bank's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Bank to perform its obligations under
this Agreement or the financial condition of the Bank.
(iii) The Bank has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Bank, enforceable against the Bank in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Bank is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement do not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Bank's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Bank to perform its obligations under this Agreement or the
financial condition of the Bank.
(vi) No litigation is pending or, to the best of the Bank's
knowledge, threatened against the Bank that would prohibit the Bank from
entering into this Agreement or, in the Bank's good faith and reasonable
judgment, is likely to materially and adversely affect either the ability
of the Bank to perform its obligations under this Agreement or the
financial condition of the Bank.
(vii) No consent, approval, authorization or order of, or filing
or registration with, any state or federal court or governmental agency
or body is required for the consummation by the Bank of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed.
(b) The representations and warranties of the Bank set forth in
Section 2.07(a) 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. Upon discovery by any of the parties
hereto of a breach of any of such representations and warranties that materially
and adversely affects the interests of the Certificateholders or any party
hereto, the party discovering such breach shall give prompt written notice to
each of the other parties hereto.
(c) Each successor Trustee or REMIC Administrator (if any and
regardless of whether the Trustee and the REMIC Administrator are different
Persons) shall be deemed to have made, as of the date of its succession, each of
the representations set forth in Section 2.07(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.07(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization. In any such case, the term "Bank" shall be deemed to mean such
successor Trustee or the REMIC Administrator, as appropriate.
Section 2.08 [RESERVED].
Section 2.09 Issuance of the Class R-I Certificates; Creation of
the REMIC I Regular Interests.
Concurrently with the assignment to the Trustee of the assets
included in REMIC I, and in exchange therefor, at the direction of the
Depositor, the REMIC I Regular Interests have been issued hereunder and the
Trustee has executed, authenticated and delivered to or upon the order of the
Depositor, in exchange for such assets, the Class R-I Certificates in authorized
denominations. The Class R-I Certificates, together with the REMIC I Regular
Interests, constitute the entire beneficial ownership of REMIC I. The rights of
the Class R-I Certificateholders and the Trustee for the benefit of REMIC II to
receive distributions from the proceeds of REMIC I in respect of the Class R-I
Certificates and the REMIC I Regular Interests, respectively, shall be as set
forth in this Agreement.
Section 2.10 Conveyance of REMIC I Regular Interests; Acceptance
of REMIC II by the Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Holders of the REMIC II
Certificates, Class A-2FL Regular Interest and Class A-MFL Regular Interest. The
Trustee acknowledges the assignment to it of the REMIC I Regular Interests and
declares that it holds and will hold the same in trust for the exclusive use and
benefit of all present and future Holders of the REMIC II Certificates, Class
A-2FL Regular Interest and Class A-MFL Regular Interest.
Section 2.11 Issuance of the REMIC II Certificates, Class A-2FL
Regular Interest and Class A-MFL Regular Interest.
Concurrently with the assignment to the Trustee of the REMIC I
Regular Interests, and in exchange therefor, at the direction of the Depositor,
the Trustee has executed, authenticated and delivered to or upon the order of
the Depositor, the REMIC II Certificates in authorized denominations and has
issued the Class A-2FL Regular Interest and Class A-MFL Regular Interest. The
interests evidenced by the REMIC II Certificates and the Class A-2FL Regular
Interest and Class A-MFL Regular Interest constitute the entire beneficial
ownership of REMIC II. The rights of the Holders of the REMIC II Certificates
and the Class A-2FL Regular Interest and Class A-MFL Regular Interest to receive
distributions from the proceeds of REMIC II shall be as set forth in this
Agreement.
Section 2.12 Loss of Value Reserve Fund Provisions.
It is the intention of the parties hereto that any Loss of Value
Payments received by the Trust pursuant to Section 2.03(i), together with the
account(s) and/or sub-account(s) in which such amounts are to be held pursuant
to Section 3.04(g), shall collectively constitute an "outside reserve fund" for
federal income tax purposes designated as the "Loss of Value Reserve Fund" and
not an asset of any REMIC formed hereunder or the Grantor Trusts. Furthermore,
for all federal tax purposes, the REMIC Administrator and the Special Servicer
shall treat any amounts transferred by a REMIC to the Loss of Value Reserve Fund
as amounts distributed by such REMIC to the applicable Mortgage Loan Seller as
beneficial owner of the Loss of Value Reserve Fund. The related Mortgage Loan
Seller will be the beneficial owner of the Loss of Value Reserve Fund for all
federal income tax purposes, and shall be taxable on all income earned thereon.
The Trustee, by execution and delivery hereof, acknowledges the assignment to it
of the assets consisting of the Loss of Value Reserve Fund, including the
amounts held therein, and declares that it or the REMIC Administrator on its
behalf holds and will hold such assets, through the Special Servicer, in
accordance with Section 3.04(g), in trust and for the benefit of the
Certificateholders, as their interests may appear.
Section 2.13 Designation of Grantor Trusts.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the Class A-2FL Regular
Interest and Class A-MFL Regular Interest to the Swap Trustee for the benefit of
the Holders of the Class A-2FL and Class A-MFL Certificates, respectively, and
the Class A-2FL Swap Counterparty and Class A-MFL Swap Counterparty,
respectively. The Swap Trustee acknowledges the assignment to it of the Class
A-2FL Regular Interest and Class A-MFL Regular Interest and declares that it
holds and will hold the same in trust for the exclusive use and benefit of all
present and future Holders of the Class A-2FL and Class A-MFL Certificates,
respectively. The Swap Trustee is hereby directed to enter into the Class A-2FL
Swap Contract and Class A-MFL Swap Contract on or prior to the Closing Date.
Concurrently with the assignment to the Swap Trustee of the Class A-2FL Regular
Interest and Class A-MFL Regular Interest, and in exchange therefor and for the
interest in the related Swap Contract, at the direction of the Depositor, the
Swap Trustee has executed, authenticated and delivered to or upon the order of
the Depositor, the Class A-2FL and Class A-MFL Certificates, respectively, in
authorized denominations. The Class A-2FL Certificates are hereby designated as
undivided beneficial interests in the segregated pool of assets consisting of
the Class A-2FL Regular Interest, the Class A-2FL Swap Contract and the Class
A-2FL Floating Rate Account (the "Class A-2FL Grantor Trust"), which shall be
treated as a "grantor trust" within the meaning of subpart E, Part I of
subchapter J of the Code. The Class A-MFL Certificates are hereby designated as
undivided beneficial interests the segregated pool of assets consisting of the
Class A-MFL Regular Interest, the Class A-MFL Swap Contract and the Class A-MFL
Floating Rate Account (the "Class A-MFL Grantor Trust"), which such portions
shall be treated as a "grantor trust" within the meaning of subpart E, Part I of
subchapter J of the Code.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Serviced Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Serviced Loans and any REO Properties that it is
obligated to service and administer pursuant to this Agreement on behalf of the
Trustee, and in the best interests and for the benefit of the Certificateholders
and, in the case of a Serviced Whole Loan, on behalf of the related Companion
Loan Holder, as a collective whole (and, in the case of a Serviced Whole Loan
that is an A/B Whole Loan, taking into account the subordination of the related
Companion Loan), in accordance with any and all applicable laws, the terms of
this Agreement, the terms of the respective Serviced Loans and, in the case of a
Serviced Whole Loan, the related Intercreditor Agreement, and, to the extent
consistent with the foregoing, in accordance with the Servicing Standard.
Without limiting the foregoing, and subject to Section 3.21, (i) the Master
Servicer shall service and administer all Performing Serviced Loans, and (ii)
the Special Servicer shall service and administer (x) each Serviced Loan (other
than a Corrected Serviced Loan) as to which a Servicing Transfer Event has
occurred and is continuing, and (y) each REO Property; provided, however, the
Master Servicer shall continue to collect information and prepare all reports to
the Trustee required hereunder with respect to any Specially Serviced Loans and
REO Properties (and the related REO Loans), and further to render such
incidental services with respect to any Specially Serviced Loans and REO
Properties as are specifically provided for herein; and provided, further, the
Special Servicer shall render such incidental services with respect to
Performing Serviced Loans as are specifically provided for herein. The Master
Servicer shall not, on behalf of the Trust, obtain title to a Mortgaged
Property.
(b) Subject to Section 3.01(a) the Master Servicer and the
Special Servicer shall each have full power and authority, acting alone or
through Sub-Servicers, to do or cause to be done any and all things in
connection with such servicing and administration that it may deem necessary or
desirable. Without limiting the generality of the foregoing, each of the Master
Servicer (with respect to Performing Serviced Loans and Corrected Serviced
Loans) and the Special Servicer (with respect to Specially Serviced Loans and
REO Loans), in its own name or in the name of the Trustee, is hereby authorized
and empowered by the Trustee to execute and deliver, on behalf of the
Certificateholders and, if a Whole Loan is affected, the related Companion Loan
Holder, the Trustee or any of them: (i) any and all financing statements,
control agreements, continuation statements and other documents or instruments
necessary to perfect or maintain the lien created by any Mortgage or other
security document in the related Mortgage File on the related Mortgaged Property
and other related collateral; (ii) any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments; and (iii) subject to Sections 3.08 and 3.20, any and all
assumptions, modifications, waivers, substitutions, extensions, amendments and
consents. Subject to Section 3.10, the Trustee shall, at the written request of
a Servicing Officer of the Master Servicer or the Special Servicer, furnish, or
cause to be so furnished, to the Master Servicer or the Special Servicer, as
appropriate, any limited powers of attorney and other documents (each of which
shall be prepared by the Master Servicer or the Special Servicer, as applicable)
necessary or appropriate to enable it to carry out its servicing and
administrative duties hereunder; provided, that the Trustee shall not be held
liable for any misuse of any such power of attorney by the Master Servicer or
the Special Servicer and the Trustee will be indemnified pursuant to, and
subject to the limitations set forth in, Section 8.05 for any losses or expenses
it incurs due to the Master Servicer's use of such power of attorney.
(c) Notwithstanding anything contained herein to the contrary,
neither the Master Servicer nor the Special Servicer shall without the Trustee's
written consent: (i) except as provided in Section 3.10(d), initiate any action,
suit or proceeding solely under the Trustee's name without indicating the Master
Servicer's or such Special Servicer's, as applicable, representative capacity,
or (ii) take any action with the intent to cause, and that actually does cause,
the Trustee to be registered to do business in any state.
The Master Servicer and/or the Special Servicer shall indemnify
the Trustee for any and all costs, liabilities and expenses incurred by the
Trustee in connection with the negligent or willful misuse of such powers of
attorney by the Master Servicer or the Special Servicer, as applicable.
(d) The relationship of each of the Master Servicer and the
Special Servicer to the Trustee and, unless they are the same Person, each other
under this Agreement is intended by the parties to this Agreement to be that of
an independent contractor and not that of a joint venturer, partner or agent.
(e) The parties hereto acknowledge that each of the ChampionsGate
Hotel Pari Passu Whole Loan, Hilton Xxxxxxx Xxxx Passu Whole Loan, JQH Hotel
Portfolio Pari Passu Whole Loan, Metropolis Shopping Center A/B Whole Loan, One
Park Avenue Pari Passu Whole Loan, Pacifica Tower A/B Whole Loan and Xxxxxxxx
Xxxx Multifamily Portfolio Pari Passu Whole Loan, is subject to the terms and
conditions of the related Intercreditor Agreement. The parties hereto further
recognize: (i) the respective rights and obligations of the "Lenders" under the
ChampionsGate Hotel Intercreditor Agreement, including with respect to the
allocation of collections on or in respect of the ChampionsGate Hotel Pari Passu
Whole Loan and the making of payments to the "Lenders" in accordance with
Section 3.2 of the ChampionsGate Hotel Intercreditor Agreement; (ii) the
respective rights and obligations of the "Lenders" under the Hilton Anatole
Intercreditor Agreement, including with respect to the allocation of collections
on or in respect of the Hilton Xxxxxxx Xxxx Passu Whole Loan and the making of
payments to the "Lenders" in accordance with Sections 1(a) and 1(b) of the
Hilton Anatole Intercreditor Agreement; (iii) the respective rights and
obligations of the "Lenders" under the JQH Hotel Portfolio Intercreditor
Agreement, including with respect to the allocation of collections on or in
respect of the JQH Hotel Portfolio Pari Passu Whole Loan and the making of
payments to the "Lenders" in accordance with Section 3.2 of the JQH Hotel
Portfolio Intercreditor Agreement; (iv) the respective rights and obligations of
each "Holder" under the Metropolis Shopping Center Intercreditor Agreement,
including with respect to the allocation of collections on or in respect of the
Metropolis Shopping Center A/B Whole Loan and the making of payments to each
"Holder" in accordance with Sections 3 and 4 of the Metropolis Shopping Center
Intercreditor Agreement; (v) the respective rights and obligations of the
"Lenders" under the One Park Avenue Intercreditor Agreement, including with
respect to the allocation of collections on or in respect of the One Park Avenue
Pari Passu Whole Loan and the making of payments to the "Lenders" in accordance
with Sections 1(a) and 1(b) of the One Park Avenue Intercreditor Agreement; (vi)
the respective rights and obligations of the "Holders" under the Pacifica Tower
Intercreditor Agreement, including with respect to the allocation of collections
on or in respect of the Pacifica Tower A/B Whole Loan and the making of payments
to the "Holders" in accordance with Sections 3 and 4 of the Pacifica Tower
Intercreditor Agreement; and (vii) the respective rights and obligations of the
"Noteholders" under the Xxxxxxxx Xxxx Multifamily Portfolio Intercreditor
Agreement, including with respect to the allocation of collections on or in
respect of the Xxxxxxxx Xxxx Multifamily Portfolio Pari Passu Whole Loan and the
making of payments to the "Noteholders" in accordance with Section 3.2 of the
Xxxxxxxx Xxxx Multifamily Portfolio Intercreditor Agreement.
Unless otherwise expressly provided for in the related
Intercreditor Agreement, if, at such time as a Mortgage Loan included in a
Serviced Whole Loan shall no longer be part of the Trust Fund, a separate
servicing agreement with respect to such Serviced Whole Loan has not been
entered into, then, until such time as a separate servicing agreement is entered
into and any required rating confirmation is obtained, and notwithstanding that
such Mortgage Loan is no longer part of the Trust Fund, the Master Servicer and,
if applicable, the Special Servicer shall continue to service such Serviced
Whole Loan or any related REO Property, as the case may be, under this Agreement
as if it were a separate servicing agreement, for the benefit of the parties
under the related Intercreditor Agreement, with: (i) such Serviced Whole Loan
and the related Mortgaged Property constituting the sole assets thereunder; (ii)
references to the "Trustee", "Trust" and "Certificateholders" (or any sub-group
thereof) being construed to refer to the new "Note A Holder" or its equivalent
under the related Intercreditor Agreement, as applicable; and (iii) references
to the "Directing Certificateholder" or its equivalent being construed to refer
to the "Controlling Holder", "Lead Lender" or its respective equivalent under
the related Intercreditor Agreement, as applicable; provided, however, from and
after the date that such Mortgage Loan is no longer part of the Trust Fund and
until the servicing and administration of such Serviced Whole Loan is to be
governed by a separate servicing agreement and not by this Agreement, and
notwithstanding any other provision hereof: (i) no P&I Advances shall be made by
the Master Servicer, Special Servicer or the Trustee in respect of such Mortgage
Loan and (ii) the holders of such Serviced Whole Loan shall be solely
responsible for all fees, costs, expenses, liabilities, indemnities and other
amounts payable or reimbursable to any Person in respect of such Mortgage Loan
and any related REO Property and in no event shall any such fees, costs,
expenses, liabilities, indemnities, or other amounts be payable out of the
Mortgage Pool or any collections relating thereto (except to the extent accrued
and unpaid while such Mortgage Loan was included as part of the Trust Fund).
With respect to a Serviced Whole Loan, subject to any express provision
contained in the related Intercreditor Agreement to the contrary, nothing herein
shall be deemed to override the provisions of such Intercreditor Agreement with
respect to the rights of the Companion Loan Holder(s) thereunder. With respect
to the servicing and administration duties and obligations with respect to a
Serviced Whole Loan, in the event of any inconsistency between the provisions of
an Intercreditor Agreement and the provisions of this Agreement, or as to any
matter on which such Intercreditor Agreement is silent or makes reference to
this Agreement, this Agreement shall govern.
Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the Master Servicer's obligations and
responsibilities hereunder and the Master Servicer's authority with respect to
the ChampionsGate Hotel Pari Passu Mortgage Loan are limited by and subject to
the terms of the ChampionsGate Hotel Intercreditor Agreement and the rights of
the ChampionsGate Hotel Master Servicer and the ChampionsGate Hotel Special
Servicer with respect thereto under the ChampionsGate Hotel Pooling Agreement.
The Master Servicer shall use reasonable best efforts consistent with the
Servicing Standard to enforce the rights of the Trustee (as holder of the
ChampionsGate Hotel Pari Passu Mortgage Loan) under the ChampionsGate Hotel
Intercreditor Agreement and the ChampionsGate Hotel Pooling Agreement. The
Master Servicer shall take such actions as it shall deem reasonably necessary to
facilitate the servicing of the ChampionsGate Hotel Pari Passu Mortgage Loan by
the ChampionsGate Hotel Master Servicer and the ChampionsGate Hotel Special
Servicer including, but not limited to, delivering appropriate Requests for
Release to the Trustee and Custodian (if any) to deliver any portion of the
related Mortgage File to the ChampionsGate Hotel Master Servicer or
ChampionsGate Hotel Special Servicer under the ChampionsGate Hotel Pooling
Agreement. The Trustee, on behalf of the Certificateholders, hereby assumes the
obligations of the "ChampionsGate Hotel Note A-2 Holder" under the ChampionsGate
Hotel Intercreditor Agreement (other than with respect to the representations
and warranties of such ChampionsGate Hotel Note A-2 Holder); provided that the
Master Servicer, on behalf of the Trustee, will perform any servicing-related
obligations assigned therein to such ChampionsGate Hotel Note A-2 Holder.
The parties hereto acknowledge that the ChampionsGate Hotel Pari
Passu Mortgage Loan is subject to the terms and conditions of the ChampionsGate
Hotel Intercreditor Agreement and further acknowledge that, pursuant to the
ChampionsGate Hotel Intercreditor Agreement, (i) the ChampionsGate Hotel Pari
Passu Mortgage Loan is to be serviced and administered by the ChampionsGate
Hotel Master Servicer in accordance with the ChampionsGate Hotel Pooling
Agreement, and (ii) in the event that (A) the ChampionsGate Hotel Pari Passu
Companion Loan is no longer part of the trust fund established under the
ChampionsGate Hotel Pooling Agreement and (B) the ChampionsGate Hotel Pari Passu
Mortgage Loan is included in the Trust Fund, then, as set forth in the
ChampionsGate Hotel Intercreditor Agreement, the ChampionsGate Hotel Pari Passu
Mortgage Loan shall continue to be serviced in accordance with the applicable
provisions of the ChampionsGate Hotel Pooling Agreement, with each of the
ChampionsGate Hotel Master Servicer and the ChampionsGate Hotel Special Servicer
continuing to act in their respective capacities thereunder (or by such
successor master servicer or special servicer as meets the requirements of the
ChampionsGate Hotel Pooling Agreement) until such time as a new servicing
agreement has been agreed to by the parties to the ChampionsGate Hotel
Intercreditor Agreement in accordance with the provisions of such agreement and
confirmation has been obtained from the Rating Agencies that such new servicing
agreement would not result in a downgrade, qualification or withdrawal of the
then current ratings of any Class of Certificates or Class of related Companion
Loan Securities then outstanding.
The parties hereto agree and acknowledge that, pursuant to the
ChampionsGate Hotel Intercreditor Agreement, the Trust Fund shall be responsible
for a proportionate share of reimbursement for any ChampionsGate Hotel
Nonrecoverable Servicing Advances (together with interest thereon, as set forth
in the ChampionsGate Hotel Pooling Agreement) and any Additional Trust Fund
Expenses (as defined in the ChampionsGate Hotel Pooling Agreement) that relates
exclusively to the servicing of the ChampionsGate Hotel Pari Passu Mortgage
Loan. In this regard,
(i) if the ChampionsGate Hotel Pooling Agreement permits the
ChampionsGate Hotel Master Servicer, the ChampionsGate Hotel Special
Servicer or the ChampionsGate Hotel Trustee to seek reimbursement for
such amounts out of general collections in the trust fund created
pursuant to the ChampionsGate Hotel Pooling Agreement, then the Master
Servicer, on behalf of the Trust Fund, shall reimburse such trust fund
for the Trust Fund's proportionate share of such amounts out of general
collections in the Trust Fund; and
(ii) if the ChampionsGate Hotel Pooling Agreement does not permit
such parties to seek reimbursement for such amounts out of general
collections in the trust fund created pursuant to the ChampionsGate Hotel
Pooling Agreement, then the Master Servicer, on behalf of the Trust Fund,
shall reimburse such parties for the Trust Fund's proportionate share of
such amounts out of general collections in the Trust Fund.
Any such amounts shall be reimbursed to such other trust fund out
of collections of principal and other amounts in the Certificate Account in the
same manner as a Nonrecoverable Advance, as set forth in Section 3.05(a).
Within 30 days of the Closing Date, the Master Servicer shall
deliver notice to the ChampionsGate Hotel Master Servicer and the ChampionsGate
Hotel Trustee of the issuance of the Certificates and the securitization of the
ChampionsGate Hotel Pari Passu Mortgage Loan. Such notice shall include contact
information for the Master Servicer, the Special Servicer, the Trustee and the
Directing Certificateholder, as well as an executed copy of this Agreement;
provided, however, if the Master Servicer has not itself received a final copy
of this Agreement within 21 days of the Closing Date, then the Master Servicer
may forward a working draft and send a final copy as promptly as practicable
after its receipt of the same.
Within 30 days of the Closing Date, the Master Servicer shall
deliver notice to the master servicer and the trustee relating to the X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-LDP11 securitization of
the issuance of the Certificates and the securitization of the JQH Hotel
Portfolio Pari Passu Mortgage Loan. Such notice shall include contact
information for the Master Servicer, the Special Servicer, the Trustee and the
Directing Certificateholder, as well as an executed copy of this Agreement;
provided, however, if the Master Servicer has not itself received a final copy
of this Agreement within 21 days of the Closing Date, then the Master Servicer
may forward a working draft and send a final copy as promptly as practicable
after its receipt of the same.
Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the Master Servicer's obligations and
responsibilities hereunder and the Master Servicer's authority with respect to
the One Park Avenue Pari Passu Mortgage Loan are limited by and subject to the
terms of the One Park Avenue Intercreditor Agreement and the rights of the One
Park Avenue Master Servicer and the One Park Avenue Special Servicer with
respect thereto under the One Park Avenue Pooling Agreement. The Master Servicer
shall use reasonable best efforts consistent with the Servicing Standard to
enforce the rights of the Trustee (as holder of the One Park Avenue Pari Passu
Mortgage Loan) under the One Park Avenue Intercreditor Agreement and the One
Park Avenue Pooling Agreement. The Master Servicer shall take such actions as it
shall deem reasonably necessary to facilitate the servicing of the One Park
Avenue Pari Passu Mortgage Loan by the One Park Avenue Master Servicer and the
One Park Avenue Special Servicer including, but not limited to, delivering
appropriate Requests for Release to the Trustee and Custodian (if any) to
deliver any portion of the related Mortgage File to the One Park Avenue Master
Servicer or One Park Avenue Special Servicer under the One Park Avenue Pooling
Agreement. The Trustee, on behalf of the Certificateholders, hereby assumes the
obligations of the "One Park Avenue Note A-2 Holder" under the One Park Avenue
Intercreditor Agreement (other than with respect to the representations and
warranties of such One Park Avenue Note A-2 Holder); provided that the Master
Servicer, on behalf of the Trustee, will perform any servicing-related
obligations assigned therein to such One Park Avenue Note A-2 Holder.
The parties hereto acknowledge that the One Park Avenue Pari
Passu Mortgage Loan is subject to the terms and conditions of the One Park
Avenue Intercreditor Agreement and further acknowledge that, pursuant to the One
Park Avenue Intercreditor Agreement, (i) the One Park Avenue Pari Passu Mortgage
Loan is to be serviced and administered by the One Park Avenue Master Servicer
in accordance with the One Park Avenue Pooling Agreement, and (ii) in the event
that (A) the related One Park Avenue Companion Loan is no longer part of the
trust fund established under the One Park Avenue Pooling Agreement and (B) the
One Park Avenue Pari Passu Mortgage Loan is included in the Trust Fund, then, as
set forth in the One Park Avenue Intercreditor Agreement, One Park Avenue Pari
Passu Mortgage Loan shall continue to be serviced in accordance with the
applicable provisions of the One Park Avenue Pooling Agreement, with each of the
One Park Avenue Master Servicer and the One Park Avenue Special Servicer
continuing to act in their respective capacities thereunder (or by such
successor master servicer or special servicer as meets the requirements of the
One Park Avenue Pooling Agreement) until such time as a new servicing agreement
has been agreed to by the parties to the One Park Avenue Intercreditor Agreement
in accordance with the provisions of such agreement and confirmation has been
obtained from the Rating Agencies that such new servicing agreement would not
result in a downgrade, qualification or withdrawal of the then current ratings
of any Class of Certificates or related Companion Loan Securities then
outstanding.
The parties hereto agree and acknowledge that, pursuant to the
One Park Avenue Intercreditor Agreement, the Trust Fund shall be responsible for
a proportionate share of reimbursement for any One Park Avenue Nonrecoverable
Servicing Advances (together with interest thereon, as set forth in the One Park
Avenue Pooling Agreement) and any Additional Trust Fund Expenses (as defined in
the One Park Avenue Pooling Agreement) that relates exclusively to the servicing
of the One Park Avenue Pari Passu Mortgage Loan. In this regard,
(iii) if the One Park Avenue Pooling Agreement permits the One
Park Avenue Master Servicer, One Park Avenue Special Servicer or the One
Park Avenue Trustee to seek reimbursement for such amounts out of general
collections in the trust fund created pursuant to the One Park Avenue
Pooling Agreement, then the Master Servicer, on behalf of the Trust Fund,
shall reimburse such trust fund for the Trust Fund's proportionate share
of such amounts out of general collections in the Trust Fund; and
(iv) if the One Park Avenue Pooling Agreement does not permit
such parties to seek reimbursement for such amounts out of general
collections in the trust fund created pursuant to the One Park Avenue
Pooling Agreement, then the Master Servicer, on behalf of the Trust Fund,
shall reimburse such parties for the Trust Fund's proportionate share of
such amounts out of general collections in the Trust Fund.
Any such amounts shall be reimbursed to such other trust fund out
of collections of principal and other amounts in the Certificate Account in the
same manner as a Nonrecoverable Advance, as set forth in Section 3.05(a).
Within 30 days of the Closing Date, the Master Servicer shall
deliver notice to the One Park Avenue Master Servicer and the One Park Avenue
Trustee of the issuance of the Certificates and the securitization of the One
Park Avenue Pari Passu Mortgage Loan. Such notice shall include contact
information for the Master Servicer, the Special Servicer, the Trustee and the
Directing Certificateholder, as well as an executed copy of this Agreement;
provided, however, if the Master Servicer has not itself received a final copy
of this Agreement within 21 days of the Closing Date, then the Master Servicer
may forward a working draft and send a final copy as promptly as practicable
after its receipt of the same.
Section 3.02 Collection of Mortgage Loan Payments.
(a) The Master Servicer (with respect to Performing Serviced
Loans) and the Special Servicer (with respect to Specially Serviced Loans) shall
undertake reasonable efforts to collect all payments called for under the terms
and provisions of the Serviced Loans and shall follow such collection procedures
as are consistent with applicable law, the express terms of this Agreement and
the related loan documents and, to the extent consistent with the foregoing, the
Servicing Standard. Consistent with the foregoing, the Special Servicer (as to
Specially Serviced Loans) may waive any Default Charges in connection with any
specific delinquent payment on a Serviced Loan it is obligated to service
hereunder. Consistent with the foregoing and in each case subject to the
Servicing Standard, the Master Servicer (or if applicable a Sub-Servicer) may
grant a one time waiver of Default Charges in connection with a late payment,
provided that for any waiver thereafter of Default Charges in connection with a
Serviced Loan that is 30 days or more past due, and with respect to which
Advances, Advance Interest or Additional Trust Fund Expenses have been incurred
and remain unreimbursed to the Trust, the Master Servicer must obtain the
consent of the Directing Certificateholder before granting such waiver subject
to the obligation of the Master Servicer to act in accordance with applicable
law and the Servicing Standard. The Directing Certificateholder's consent shall
be deemed granted if it has not responded in writing (which may be via fax or
e-mail) within ten Business Days of its receipt of such request.
(b) (i) At least 90 days prior to the maturity date of each
Balloon Loan that is included in the Trust Fund, the Master Servicer shall send
a notice to the related Mortgagor of such maturity date (with a copy to be sent
to the Special Servicer) and shall request written confirmation that the Balloon
Payment will be paid by such maturity date.
(ii) Within 60 days after the Closing Date (or within such
shorter period as may be required by the applicable Letter of Credit),
the Master Servicer shall notify each provider of a Letter of Credit for
any Serviced Loan that the Master Servicer or the Special Servicer, on
behalf of the Trustee for the benefit of the Certificateholders, shall be
the beneficiary under each such Letter of Credit. The Master Servicer
shall maintain and execute each such Letter of Credit, if applicable, in
accordance with the related loan documents.
(iii) Within 60 days after the later of (A) the Closing Date as
to each Serviced Loan that is secured by the interest of the related
Mortgagor under a Ground Lease (or within such shorter period as may be
required by the applicable Ground Lease) and (B) the Master Servicer's
receipt of a copy of the related Ground Lease, the Master Servicer shall
notify the related ground lessor of the transfer of such Mortgage Loan to
the Trust pursuant to this Agreement and inform such ground lessor that
any notices of default under the related Ground Lease should thereafter
be forwarded to the Master Servicer.
All amounts received by the Trust with respect to a Whole Loan
shall be applied to amounts due and owing thereunder (including for principal
and accrued and unpaid interest) in accordance with the express provisions of
this Agreement, the related Mortgage Notes, the related Mortgage, the related
loan agreement, if any, and the related Intercreditor Agreement.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Account; Servicing Advances; Reserve Accounts.
(a) The Master Servicer shall, as to all the Serviced Loans,
establish and maintain one or more accounts (each a "Servicing Account"), into
which all Escrow Payments received by it with respect to the Serviced Loans
shall be deposited and retained. Subject to any terms of the related loan
documents that specify the nature of the account in which Escrow Payments shall
be held, each Servicing Account shall be an Eligible Account. Withdrawals of
amounts so collected in respect of any Serviced Loan (and interest earned
thereon) from a Servicing Account may be made only: (i) to effect payment of
real estate taxes, assessments, insurance premiums, ground rents (if applicable)
and comparable items in respect of related Mortgaged Property; (ii) to reimburse
the Master Servicer, the Special Servicer or the Trustee, as applicable, for any
unreimbursed Servicing Advances made thereby to cover any of the items described
in the immediately preceding clause (i); (iii) to refund to the related
Mortgagor any sums as may be determined to be overages; (iv) to pay interest or
other income, if required and as described below, to the related Mortgagor on
balances in the Servicing Account (or, if and to the extent not payable to the
related Mortgagor, to pay such interest or other income (up to the amount of any
Net Investment Earnings in respect of such Servicing Account for each Collection
Period) to the Master Servicer); (v) disburse Insurance Proceeds if required to
be applied to the repair or restoration of the related Mortgaged Property; or
(vi) to clear and terminate the Servicing Account at the termination of this
Agreement in accordance with Section 9.01. The Master Servicer shall pay or
cause to be paid to the related Mortgagor interest, if any, earned on the
investment of funds in a Servicing Account maintained thereby, if required by
law or the terms of the related Serviced Loan. If the Master Servicer shall
deposit into a Servicing Account any amount not required to be deposited
therein, it may at any time withdraw such amount from such Servicing Account,
any provision herein to the contrary notwithstanding. The Special Servicer shall
within two Business Days after receipt deliver all Escrow Payments received by
it to the Master Servicer for deposit into the applicable Servicing Account.
(b) The Master Servicer shall as to each Serviced Loan, including
each Specially Serviced Loan, (i) maintain accurate records with respect to the
related Mortgaged Property reflecting the status of real estate taxes,
assessments and other similar items that are or may become a lien thereon and
the status of insurance premiums and any ground rents payable in respect thereof
and (ii) use reasonable efforts consistent with the Servicing Standard to
obtain, from time to time, all bills for the payment of such items (including
renewal premiums) and effect payment thereof prior to the applicable penalty or
termination date. For purposes of effecting any such payment, the Master
Servicer shall apply Escrow Payments as allowed under the terms of the related
loan documents; provided that if such Serviced Loan does not require the related
Mortgagor to escrow for the payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and similar items, each of the Master
Servicer and the Special Servicer shall use reasonable efforts, as to those
Serviced Loans it is obligated to service hereunder, and subject to and in
accordance with the Servicing Standard, enforce the requirement of the related
Mortgage that the Mortgagor make payments in respect of such items at the time
they first become due.
(c) In accordance with the Servicing Standard and for all
Serviced Loans, but subject to Section 3.11(h), the Master Servicer shall make a
Servicing Advance with respect to each Mortgaged Property (including each
Mortgaged Property relating to a Specially Serviced Loan) all such funds as are
necessary for the purpose of effecting the timely payment of (i) real estate
taxes, assessments and other similar items, (ii) ground rents (if applicable),
and (iii) premiums on Insurance Policies, in each instance prior to the
applicable penalty or termination date if and to the extent that (x) Escrow
Payments (if any) collected from the related Mortgagor are insufficient to pay
such item when due, and (y) the related Mortgagor has failed to pay such item on
a timely basis; provided that, in the case of amounts described in the preceding
clause (i), the Master Servicer shall not make a Servicing Advance of any such
amount until the Master Servicer (in accordance with the Servicing Standard) has
actual knowledge that the Mortgagor has not made such payments and reasonably
anticipates that such amounts will not be paid by the related Mortgagor on or
before the applicable penalty date. All such Advances shall be reimbursable in
the first instance from related collections from the Mortgagor and further as
provided in Section 3.05. No costs incurred by the Master Servicer in effecting
the payment of real estate taxes, assessments and, if applicable, ground rents
on or in respect of such Mortgaged Properties shall, for purposes hereof,
including calculating monthly distributions to Certificateholders, be added to
the respective unpaid principal balances or Stated Principal Balances of the
related Serviced Loans, notwithstanding that the terms of such Serviced Loans so
permit; provided that this sentence shall not be construed to limit the rights
of the Master Servicer on behalf of the Trust or, if a Whole Loan is involved,
on behalf of the related Companion Loan Holder, to enforce any obligations of
the related Mortgagor under such Serviced Loan.
The parties hereto acknowledge that, pursuant to the applicable
Non-Serviced Loan Pooling Agreement, the ChampionsGate Hotel Master Servicer or
the One Park Avenue Master Servicer (as applicable) is obligated to make
servicing advances with respect to the ChampionsGate Hotel Pari Passu Mortgage
Loan or the One Park Avenue Pari Passu Mortgage Loan (as applicable). The
ChampionsGate Hotel Master Servicer or the One Park Avenue Master Servicer (as
applicable) shall be entitled to reimbursement for ChampionsGate Hotel
Nonrecoverable Servicing Advances or One Park Avenue Nonrecoverable Servicing
Advances (as applicable) (with any accrued and unpaid interest thereon provided
for under the related Non-Serviced Loan Pooling Agreement) in the manner set
forth in the related Non-Serviced Loan Pooling Agreement and the related
Intercreditor Agreement.
(d) The Master Servicer shall establish and maintain, as
applicable, one or more accounts (the "Reserve Accounts"), in which all Reserve
Funds, if any, received by it with respect to the Serviced Loans shall be
deposited and retained. As and to the extent consistent with the Servicing
Standard and the related loan documents, the Master Servicer may make
withdrawals of amounts so deposited, and draws under any Letter of Credit
delivered in lieu of Reserve Funds, to pay for, or to reimburse the related
Mortgagor in connection with, the costs associated with the related tenant
improvements, leasing commissions, repairs, replacements, capital improvements
and/or environmental testing and remediation, litigation and/or other special
expenses at or with respect to the related Mortgaged Property for which such
Reserve Funds were intended or such Letter of Credit was delivered and, in the
case of a Reserve Fund constituting debt service reserve accounts, to apply
amounts on deposit therein in respect of principal and interest on the related
Serviced Loan. In addition, as and to the extent consistent with the Servicing
Standard and the related loan documents, the Master Servicer may make
withdrawals of amounts so deposited, and draws under any Letter of Credit so
delivered, to prepay the Serviced Loan in the event certain leasing or other
economic criteria are not satisfied at the related Mortgaged Property (but only
if such prepayment is required by the related loan documents or continuing to
hold such funds or Letter of Credit as Additional Collateral is not consistent
with the Servicing Standard), or to release such amounts to the related
Mortgagor or otherwise apply such amounts for any other appropriate purpose in
the event that such criteria are satisfied, and the Master Servicer may return
any Letter of Credit so delivered to the related Mortgagor. Subject to the terms
of the related loan documents, each Reserve Account shall be an Eligible
Account. Interest and other income, if any, earned on funds on deposit in any
Reserve Account held by the Master Servicer (to the extent of any Net Investment
Earnings with respect to such Reserve Account for any Collection Period), shall
be for the benefit of and payable to the Master Servicer, unless otherwise
required to be paid to the related Mortgagor by law or the terms of the related
Serviced Loan. Any out-of-pocket expenses incurred by the Master Servicer to
enable the Master Servicer to make any draw under any Letter of Credit shall
constitute a Servicing Advance, and the Master Servicer shall make reasonable
efforts to recover such expenses from the related Mortgagor to the extent the
Mortgagor is required to pay such expenses under the terms of the related loan
documents.
(e) To the extent an operations and maintenance plan is required
to be established and executed pursuant to the terms of a Serviced Loan, the
Master Servicer shall request from the Mortgagor written confirmation thereof
within a reasonable time after the later of the Closing Date and the date as of
which such plan is required to be established or completed. To the extent any
repairs, capital improvements, actions or remediations are required to have been
taken or completed pursuant to the terms of the Serviced Loan, the Master
Servicer shall request from the Mortgagor written confirmation of such actions
and remediations within a reasonable time after the later of the Closing Date
and the date as of which such action or remediations are required by the related
loan documents to be or to have been taken or completed. To the extent a
Mortgagor shall fail to promptly respond to any inquiry described in this
Section 3.03(e), the Master Servicer shall determine whether the related
Mortgagor has failed to perform its obligations under the related Serviced Loan
and report any such failure to the Special Servicer, the Trustee, the related
Companion Loan Holder (if a Whole Loan is involved), and the Directing
Certificateholder within a reasonable time after the date as of which such
actions or remediations are required to be or to have been taken or completed.
The Master Servicer shall promptly give written notice to the Trustee, the
Special Servicer, the related Companion Loan Holder (if a Whole Loan is
involved), the Controlling Holder (if an A/B Whole Loan is involved) and the
Directing Certificateholder if the Master Servicer shall determine that any
Mortgagor has failed to perform its obligations under the related loan documents
in respect of environmental matters.
(f) Promptly following the Closing Date, the Trustee shall send
written notice to the ChampionsGate Hotel Master Servicer and the ChampionsGate
Hotel Trustee stating that, as of the Closing Date, the Trustee is the holder of
the ChampionsGate Hotel Pari Passu Mortgage Loan and directing the ChampionsGate
Hotel Master Servicer to remit to the Master Servicer all amounts payable to,
and to forward, deliver or otherwise make available, as the case may be, to the
Master Servicer all reports, statements, documents, communications and other
information that are to be forwarded, delivered or otherwise made available to,
the holder of the ChampionsGate Hotel Pari Passu Mortgage Loan under the
ChampionsGate Hotel Intercreditor Agreement and the ChampionsGate Hotel Pooling
Agreement. The Master Servicer shall, on the day of receipt thereof, deposit
into the Certificate Account all amounts received with respect to the
ChampionsGate Hotel Pari Passu Mortgage Loan, the ChampionsGate Hotel Mortgaged
Property or any related REO Property.
(g) Promptly following the Closing Date, the Trustee shall send
written notice to the One Park Avenue Master Servicer and the One Park Avenue
Trustee stating that, as of the Closing Date, the Trustee is the holder of the
One Park Avenue Pari Passu Mortgage Loan and directing the One Park Avenue
Master Servicer to remit to the Master Servicer all amounts payable to, and to
forward, deliver or otherwise make available, as the case may be, to the Master
Servicer all reports, statements, documents, communications and other
information that are to be forwarded, delivered or otherwise made available to,
the holder of the One Park Avenue Pari Passu Mortgage Loan under the One Park
Avenue Intercreditor Agreement and the One Park Avenue Pooling Agreement. The
Master Servicer shall, on the day of receipt thereof, deposit into the
Certificate Account all amounts received with respect to the Xxx Xxxx Xxxxxx
Xxxx, Xxx Xxxx Xxxxxx Mortgaged Property or any related REO Property.
(h) Promptly following the Closing Date, the Trustee shall send
written notice to the master servicer and the trustee related to the X.X. Xxxxxx
Xxxxx Commercial Mortgage Securities Trust 2007-LDP11 securitization stating
that, as of the Closing Date, the Trustee is the holder of the JQH Hotel
Portfolio Pari Passu Mortgage Loan and directing such master servicer to remit
to the Master Servicer all amounts payable to, and to forward, deliver or
otherwise make available, as the case may be, to the Master Servicer all
reports, statements, documents, communications and other information that are to
be forwarded, delivered or otherwise made available to, the holder of the JQH
Hotel Portfolio Pari Passu Mortgage Loan and holder of the JQH Hotel Portfolio
Pari Passu under the JQH Hotel Portfolio Intercreditor Agreement.
Section 3.04 Certificate Account, Distribution Account, REMIC I
Distribution Account, REMIC II Distribution Account, Excess Liquidation Proceeds
Account, Class A-2FL Floating Rate Account, Class A-MFL Floating Rate Account,
Interest Reserve Account and Serviced Whole Loan Custodial Account.
(a) The Master Servicer shall segregate and hold all funds
collected and received by it in connection with the Mortgage Pool separate and
apart from its own funds and general assets. The Master Servicer shall establish
and maintain one or more accounts (collectively, the "Certificate Account"),
held on behalf of the Trustee in trust for the benefit of the
Certificateholders. The Certificate Account shall be an Eligible Account. The
Master Servicer shall deposit or cause to be deposited into the Certificate
Account, within one Business Day of receipt (in the case of payments by
Mortgagors or other collections on or in respect of the Mortgage Loans) or as
otherwise required hereunder, the following payments and collections received or
made by or on behalf of it (and, with respect to any Non-Serviced Loan, to the
extent received pursuant to the related Intercreditor Agreement) subsequent to
the Cut-off Date (other than in respect of principal, interest, Escrow Payments
and any other amounts due and payable on the Mortgage Loans on or before the
Cut-off Date, which payments shall be delivered promptly to the related Mortgage
Loan Seller or its related designee, with negotiable instruments endorsed as
necessary and appropriate without recourse):
(i) all payments, from whatever source, or transfers from a debt
service reserve account, on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments, from whatever source, or transfers from a debt
service reserve account, on account of interest on the Mortgage Loans
including Default Interest;
(iii) all Prepayment Premiums received in respect of the Mortgage
Loans;
(iv) all payments, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of the Mortgage Loans together
with any amounts representing recoveries of Workout-Delayed Reimbursement
Amounts or Nonrecoverable Advances in respect of the related Mortgage
Loans;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Certificate Account;
(vi) any amounts required to be deposited by the Master Servicer
or the Special Servicer pursuant to Section 3.07(b) in connection with
losses resulting from a deductible clause in a blanket or master single
insurance policy;
(vii) any amounts required to be transferred to the Certificate
Account from the REO Account pursuant to Section 3.16(c);
(viii) any amounts representing payments made by Mortgagors that
are allocable to cover items in respect of which Servicing Advances have
been made;
(ix) any proceeds from the repurchase or substitution of Mortgage
Loans under Section 2.03;
(x) insofar as they do not constitute Escrow Payments, any
amounts paid by a Mortgagor specifically to cover items for which a
Servicing Advance has been made or that represent a recovery of property
protection expenses from a Mortgagor; and
(xi) any Loss of Value Payments, as set forth in Section 3.05(g);
provided that any amounts described above (other than clause (v) of this Section
3.04(a)) that relate to a Whole Loan or any related REO Property (other than
Liquidation Proceeds derived from the sale of the related Mortgage Loan pursuant
to Section 3.18 to or through the related Note B Holder pursuant to the related
Intercreditor Agreement) shall be deposited into the related Serviced Whole Loan
Custodial Account, and, in any such case, shall thereafter be transferred as
provided in Section 3.05(f).
The foregoing requirements for deposit into the Certificate
Account shall be exclusive. Without limiting the generality of the foregoing,
actual payments from Mortgagors in the nature of Escrow Payments, Reserve Funds,
late payment charges, assumption fees, assumption application fees, earnout
fees, extension fees, modification fees, charges for beneficiary statements or
demands and amounts collected for checks returned for insufficient funds, need
not be deposited by the Master Servicer in the Certificate Account. The Master
Servicer shall promptly deliver to the Special Servicer any of the foregoing
items received by it, if and to the extent that such items constitute Additional
Special Servicing Compensation payable to the Special Servicer. If the Master
Servicer shall deposit into the Certificate Account any amount not required to
be deposited therein, it may at any time withdraw such amount from the
Certificate Account, any provision herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i)
through (iv) and (viii) of this Section 3.04(a) with respect to any Serviced
Loan (for the avoidance of doubt, not including any REO Loan), the Special
Servicer shall promptly, but in no event later than one Business Day after
receipt of available funds, remit such amounts to the Master Servicer for
deposit into the Certificate Account in accordance with the second preceding
paragraph, unless the Special Servicer determines, consistent with the Servicing
Standard, that a particular item should not be deposited because of a
restrictive endorsement. Any such amounts received by the Special Servicer with
respect to a REO Property (other than a REO Property related to a Whole Loan)
shall be deposited by the Special Servicer into the REO Account and remitted to
the Master Servicer for deposit into the Certificate Account pursuant to Section
3.16(c). With respect to any such amounts paid by check to the order of the
Special Servicer, the Special Servicer shall endorse such check to the order of
the Master Servicer unless the Special Servicer determines, consistent with the
Servicing Standard, that a particular item cannot be so endorsed and delivered
because of a restrictive endorsement.
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") to be held in trust for the
benefit of the Trust and the Grantor Trusts as holders of the REMIC I Regular
Interests, Class A-2FL Regular Interest and Class A-MFL Regular Interest and for
the Certificateholders. The Distribution Account shall be an Eligible Account.
On or prior to 1:00 p.m. New York City time on each Master Servicer Remittance
Date, the Master Servicer shall deliver to the Trustee, for deposit into the
Distribution Account, an aggregate amount of immediately available funds equal
to the Master Servicer Remittance Amount for such Master Servicer Remittance
Date. If, at 3:00 p.m., New York City time, on any Master Servicer Remittance
Date, the Trustee has not received the Master Servicer Remittance Amount, the
Trustee shall provide notice to the Master Servicer in the same manner as
required by Section 4.03(a) with respect to P&I Advances.
In the event that the Master Servicer fails to remit the Master
Servicer Remittance Amount for such Master Servicer Remittance Date on the
related Master Servicer Remittance Date, the Master Servicer shall pay to the
Trustee interest at the Reimbursement Rate on the Master Servicer Remittance
Amount for the period from and including such Master Servicer Remittance Date to
but excluding the date on which the Master Servicer Remittance Amount is
actually received by the Trustee.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee for deposit into the Distribution Account:
(i) any P&I Advances required to be made by the Master Servicer
in accordance with Section 4.03(a);
(ii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19(e) in connection with Prepayment Interest
Shortfalls; and
(iii) any Liquidation Proceeds paid by the Master Servicer or a
Majority Certificateholder of the Controlling Class in connection with
the purchase of all of the Mortgage Loans and any REO Properties pursuant
to Section 9.01, exclusive of the portion of such Liquidation Proceeds
required to be deposited into the Certificate Account pursuant to Section
9.01.
The Trustee shall, upon receipt, deposit into the Distribution
Account any and all amounts received or advanced by the Trustee that are
required by the terms of this Agreement to be deposited therein.
All such amounts deposited in respect of the Mortgage Loans
shall, on each Distribution Date, be deemed to be deposited into the REMIC I
Distribution Account in respect of such Mortgage Loans.
(c) (i) The Trustee shall establish and maintain the REMIC I
Distribution Account, as a sub-account of the Distribution Account, in the name
of the Trustee, in trust for the benefit of the Certificateholders. The REMIC I
Distribution Account shall be established and maintained as an Eligible Account
or as a sub-account of the Distribution Account. With respect to each
Distribution Date, the Trustee shall withdraw or be deemed to withdraw from the
REMIC I Distribution Account and deposit or be deemed to deposit into the REMIC
II Distribution Account on or before such date the amount of the Available
Distribution Amount (including P&I Advances) and Prepayment Premiums to be
distributed in respect of the REMIC I Regular Interests pursuant to Section
4.01(a)(i) and Section 4.01(c)(iv) on such date.
(ii) The Trustee shall establish and maintain the REMIC II
Distribution Account, as a sub-account of the Distribution Account, in
the name of the Trustee, in trust for the benefit of the REMIC II
Certificateholders. The REMIC II Distribution Account shall be
established and maintained as an Eligible Account or as a sub-account of
the Distribution Account. With respect to each Distribution Date, the
Trustee shall withdraw or be deemed to withdraw from the REMIC II
Distribution Account the amount of the Available Distribution Amount
(including P&I Advances) and Prepayment Premiums to be distributed in
respect of the applicable REMIC II Regular Certificates and the Class
A-2FL Regular Interest and Class A-MFL Regular Interest pursuant to
Section 4.01(b) and Section 4.01(c)(i) on such date.
(iii) [RESERVED].
(iv) The Trustee shall establish and maintain one or more
accounts or sub-accounts (collectively, the "Excess Liquidation Proceeds
Account") in the name of the Trustee, in trust for the benefit of the
Certificateholders. Each account that constitutes the Excess Liquidation
Proceeds Account shall be an Eligible Account. On each Master Servicer
Remittance Date, the Master Servicer shall withdraw from the Certificate
Account and remit to the Trustee for deposit into the Excess Liquidation
Proceeds Account all Excess Liquidation Proceeds received during the
Collection Period ending on the Business Day prior to such Master
Servicer Remittance Date. On any Distribution Date, amounts held in the
Excess Liquidation Proceeds Account that exceed amounts reasonably
required to offset future Realized Losses as determined by the Special
Servicer with the consent of the Directing Certificateholder shall be
distributed to the Holders of the Class R-I Certificates.
(v) [RESERVED].
(vi) On or before the Closing Date, the Swap Trustee shall
establish and maintain the Class A-2FL Floating Rate Account in trust for
the benefit of the Holders of the Class A-2FL Certificates and the Class
A-2FL Swap Counterparty. The Class A-2FL Floating Rate Account shall (i)
at all times be an Eligible Account and (ii) relate solely to the Class
A-2FL Certificates and amounts payable in respect of the Class A-2FL Swap
Contract. The Swap Trustee shall deposit into the Class A-2FL Floating
Rate Account all amounts received in respect of distributions on the
Class A-2FL Regular Interest as specified in Section 4.01(a) and Section
4.01(b), and shall immediately deposit into the Class A-2FL Floating Rate
Account all amounts received from the Class A-2FL Swap Counterparty under
the Class A-2FL Swap Contract.
(vii) On or before the Closing Date, the Swap Trustee shall
establish and maintain the Class A-MFL Floating Rate Account in trust for
the benefit of the Holders of the Class A-MFL Certificates and the Class
A-MFL Swap Counterparty. The Class A-MFL Floating Rate Account shall (i)
at all times be an Eligible Account and (ii) relate solely to the Class
A-MFL Certificates and amounts payable in respect of the Class A-MFL Swap
Contract. The Swap Trustee shall deposit into the Class A-MFL Floating
Rate Account all amounts received in respect of distributions on the
Class A-MFL Regular Interest as specified in Section 4.01(a) and Section
4.01(b), and shall immediately deposit into the Class A-MFL Floating Rate
Account all amounts received from the Class A-MFL Swap Counterparty under
the Class A-MFL Swap Contract.
(d) Funds in the Certificate Account may be invested only in
Permitted Investments in accordance with the provisions of Section 3.06. The
Master Servicer shall give notice to the other parties hereto of the location of
the Certificate Account as of the Closing Date and of the new location of the
Certificate Account prior to any change thereof. The Distribution Account, the
REMIC I Distribution Account, the REMIC II Distribution Account, the Class A-2FL
Floating Rate Account, the Class A-MFL Floating Rate Account and the Excess
Liquidation Proceeds Account shall be established at the Corporate Trust Office
of the Trustee as of the Closing Date, and the Trustee shall give notice to the
other parties hereto of the new location of the Distribution Account, the REMIC
I Distribution Account, the REMIC II Distribution Account, the Class A-2FL
Floating Rate Account, the Class A-MFL Floating Rate Account and the Excess
Liquidation Proceeds Account prior to any change thereof. Funds in the Excess
Liquidation Proceeds Account, if established, shall remain uninvested.
(e) The Master Servicer shall establish and maintain one or more
Serviced Whole Loan Custodial Accounts in which the Master Servicer shall
deposit or cause to be deposited within one Business Day of receipt (in the case
of payments by Mortgagors or other collections on or in respect of a Serviced
Whole Loan) or as otherwise required hereunder, the following payments and
collections received or made by or on behalf of it subsequent to the Cut-off
Date (other than in respect of principal, interest and any other amounts due and
payable on such Serviced Whole Loan on or before the Cut-off Date, which
payments shall be held as provided in the related Intercreditor Agreement):
(i) all payments, from whatever source, or transfers from a debt
service reserve account, on account of principal, including Principal
Prepayments, on such Serviced Whole Loan;
(ii) all payments, from whatever source, or transfers from a debt
service reserve account, on account of interest on such Serviced Whole
Loan;
(iii) all Prepayment Premiums received in respect of such
Serviced Whole Loan;
(iv) all payments, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of such Serviced Whole Loan,
together with any amounts representing recoveries of Workout-Delayed
Reimbursement Amounts or Nonrecoverable Advances in respect of the
related Serviced Whole Loan;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in such Serviced Whole Loan
Custodial Account;
(vi) any amounts required to be deposited by the Master Servicer
or the Special Servicer pursuant to Section 3.07(b) in connection with
losses with respect to such Serviced Whole Loan resulting from a
deductible clause in a blanket or master single insurance policy;
(vii) any amounts required to be transferred from the related REO
Account pursuant to Section 3.16(c);
(viii) any amounts representing payments made by Mortgagors that
are allocable to cover items in respect of which Servicing Advances have
been made; and
(ix) insofar as they do not constitute Escrow Payments, any
amounts paid by the related Mortgagor with respect to the related
Serviced Whole Loan specifically to cover items for which a Servicing
Advance has been made or that represent a recovery of property protection
expenses from a Mortgagor.
The foregoing requirements for deposit into the Serviced Whole
Loan Custodial Accounts shall be exclusive. Without limiting the generality of
the foregoing, actual payments from Mortgagors in the nature of Escrow Payments,
Reserve Funds, assumption fees, assumption application fees, earnout fees,
extension fees, modification fees, charges for beneficiary statements or demands
and amounts collected for checks returned for insufficient funds, need not be
deposited by the Master Servicer in the Serviced Whole Loan Custodial Accounts.
The Master Servicer shall promptly deliver to the Special Servicer any of the
foregoing items received by it, if and to the extent that such items constitute
Additional Special Servicing Compensation payable to the Special Servicer. If
the Master Servicer shall deposit into any Serviced Whole Loan Custodial Account
any amount not required to be deposited therein, it may at any time withdraw
such amount from such Serviced Whole Loan Custodial Account, any provision
herein to the contrary notwithstanding.
Notwithstanding the foregoing or any other provision to the
contrary in this Agreement, the Master Servicer may maintain the Certificate
Account and the respective Serviced Whole Loan Custodial Accounts as multiple
separate sub-accounts of a single Eligible Account; provided that: (i) all
deposits into and withdrawals from such single Eligible Account shall be made in
the same manner as would be the case if the Certificate Account and the
respective Serviced Whole Loan Custodial Accounts were maintained as multiple
separate accounts; (ii) all distributions on the Certificates will be calculated
and made in the same manner as would be the case if the Certificate Account and
the respective Serviced Whole Loan Custodial Accounts were maintained as
multiple separate accounts; (iii) the Master Servicer shall make credits and
debits to those multiple sub-accounts in a manner consistent with the provisions
of this Agreement governing deposits and withdrawals of funds to and from the
Certificate Account and the respective Serviced Whole Loan Custodial Accounts,
respectively; (iv) the Master Servicer's maintaining the Certificate Account and
the respective Serviced Whole Loan Custodial Accounts as multiple separate
sub-accounts of a single Eligible Account (as opposed to in the form of multiple
separate Eligible Accounts) shall not adversely affect any of the
Certificateholders or any Companion Loan Holder (if a Whole Loan is affected);
and (v) such single Eligible Account shall be entitled substantially as follows:
"Bank of America, National Association, as Master Servicer, in trust for the
registered holders of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-3, and the respective Companion
Loan Holder, as their interests may appear, Certificate/Custodial Account".
Upon receipt of any of the amounts described in clauses (i)
through (iv) and (viii) of this Section 3.04(e) with respect to such Whole Loan
(for the avoidance of doubt, not including any REO Loan), the Special Servicer
shall promptly, but in no event later than one Business Day after receipt of
available funds, remit such amounts to the Master Servicer for deposit into the
applicable Serviced Whole Loan Custodial Account in accordance with the second
preceding paragraph, unless the Special Servicer determines, consistent with the
Servicing Standard, that a particular item should not be deposited because of a
restrictive endorsement. Any such amounts received by the Special Servicer with
respect to a REO Property (other than a REO Property that is not related to a
Whole Loan) shall be deposited by the Special Servicer into the related REO
Account and remitted to the Master Servicer for deposit into the related
Serviced Whole Loan Custodial Account pursuant to Section 3.16(c). With respect
to any such amounts paid by check to the order of the Special Servicer, the
Special Servicer shall endorse such check to the order of the Master Servicer
unless the Special Servicer determines, consistent with the Servicing Standard,
that a particular item cannot be so endorsed and delivered because of a
restrictive endorsement.
Funds in a Serviced Whole Loan Custodial Account may be invested
only in Permitted Investments in accordance with the provisions of Section 3.06.
The Master Servicer shall give notice to the Trustee, the Special Servicer, the
Depositor and the related Companion Loan Holder, of the location of each
Serviced Whole Loan Custodial Account as of the Closing Date and of the new
location of a Serviced Whole Loan Custodial Account prior to any change thereof.
(f) The Master Servicer shall establish and maintain the Interest
Reserve Account in trust for the benefit of the Certificateholders. The Master
Servicer is hereby authorized to make deposits in and withdrawals from the
Interest Reserve Account, in accordance with the terms of this Agreement. The
Interest Reserve Account shall be maintained as a segregated account separate
from other accounts.
(g) If any Loss of Value Payments are received in connection with
a Material Defect or Material Breach, as the case may be, pursuant to or as
contemplated by Section 2.03(i), the Special Servicer shall establish and
maintain one or more non-interest bearing accounts (collectively, the "Loss of
Value Reserve Fund") to be held in trust for the benefit of the
Certificateholders, for purposes of holding such Loss of Value Payments. Each
account that constitutes the Loss of Value Reserve Fund shall be an Eligible
Account or a sub-account of an Eligible Account. The Special Servicer shall,
upon receipt, deposit in the Loss of Value Reserve Fund all Loss of Value
Payments received by it.
Section 3.05 Permitted Withdrawals From the Certificate Account,
the Distribution Account, the Serviced Whole Loan Custodial Accounts, the Class
A-2FL Floating Rate Account, the Class A-MFL Floating Rate Account and the
Excess Liquidation Proceeds Account.
(a) The Master Servicer may, from time to time, make withdrawals
from the Certificate Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee no later than 1:00 p.m. (New York
time) for deposit into the Distribution Account, the Master Servicer
Remittance Amount for, and, to the extent permitted or required by
Section 4.03(a), as applicable, any P&I Advances to be made on, each
Master Servicer Remittance Date;
(ii) to reimburse the Master Servicer or the Trustee, as
applicable, for xxxxxxxxxxxx X&X Advances made thereby (in each case,
with its own funds), the Master Servicer's and the Trustee's, as the case
may be, respective rights to reimbursement pursuant to this clause (ii)
with respect to any P&I Advance (other than Nonrecoverable P&I Advances,
which are reimbursable pursuant to clause (vii) of this Section 3.05(a))
being limited to amounts that represent Late Collections of interest and
principal received in respect of the particular Mortgage Loan or REO Loan
as to which such P&I Advance was made (net of related Master Servicing
Fees and/or Workout Fees) (exclusive of each Mortgage Loan or REO Loan
included in a Whole Loan to the extent such reimbursement was paid out of
collections from the related Serviced Whole Loan Custodial Account);
(iii) to pay to the Master Servicer earned and unpaid Master
Servicing Fees in respect of each Mortgage Loan and REO Loan (exclusive
of each Mortgage Loan or REO Loan included in a Whole Loan to the extent
such payment was paid out of collections from the related Serviced Whole
Loan Custodial Account), the Master Servicer's right to payment pursuant
to this clause (iii) with respect to any Mortgage Loan or REO Loan
(exclusive of each Mortgage Loan or REO Loan included in a Whole Loan to
the extent such payment was paid out of collections from the related
Serviced Whole Loan Custodial Account) being payable from, and limited
to, amounts received on or in respect of such Mortgage Loan (whether in
the form of payments, Liquidation Proceeds, Condemnation Proceeds or
Insurance Proceeds) or such REO Loan (whether in the form of REO
Revenues, Liquidation Proceeds or Insurance Proceeds) that are allocable
as a recovery of interest thereon;
(iv) to pay to the Special Servicer, out of general collections
on the Mortgage Loans and any REO Properties, earned and unpaid Special
Servicing Fees in respect of each Specially Serviced Loan and REO Loan,
to pay to the ChampionsGate Hotel Special Servicer, out of general
collections on the Mortgage Loans and any REO Properties, the Trust
Fund's applicable share of any earned and unpaid special servicing fees,
liquidation fees and workout fees in respect of the ChampionsGate Hotel
Pari Passu Mortgage Loan and to pay to the One Park Avenue Special
Servicer, out of general collections on the Mortgage Loans and any REO
Properties, the Trust Fund's applicable share of any earned and unpaid
special servicing fees, liquidation fees and workout fees in respect of
the One Park Avenue Pari Passu Mortgage Loan;
(v) to pay to the Special Servicer earned and unpaid Workout Fees
and Liquidation Fees to which it is entitled pursuant to, and from the
sources contemplated by Section 3.11(c);
(vi) to reimburse itself, the Special Servicer or the Trustee, as
applicable, for any unreimbursed Servicing Advances made thereby (in each
case, with its own funds), the Master Servicer's, the Trustee's or the
Special Servicer's, as the case may be, respective rights to
reimbursement pursuant to this clause (vi) with respect to any Servicing
Advance (other than Nonrecoverable Servicing Advances, which are
reimbursable pursuant to clause (vii) of this Section 3.05(a)) being
limited to (A) payments made by the related Mortgagor that are allocable
to cover the item in respect of which such Servicing Advance was made,
and (B) Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds
and, if applicable, REO Revenues received in respect of the particular
Mortgage Loan or REO Property (exclusive of each Mortgage Loan or REO
Loan included in a Whole Loan or any REO Property securing a Whole Loan
to the extent such reimbursement was paid out of collections from the
related Serviced Whole Loan Custodial Account) as to which such Servicing
Advance was made;
(vii) (A) to reimburse the Master Servicer, the Special Servicer
or the Trustee, as applicable, out of general collections on the Mortgage
Loans and any REO Properties (exclusive of any Non-Serviced Loan), for
any unreimbursed Advances made thereby that have been determined to be
Nonrecoverable Advances (provided that amounts may be withdrawn over time
as hereinafter provided) or, subject to the limitations contained in the
following paragraphs of this Section 3.05(a), for any Workout-Delayed
Reimbursement Amounts, (B) to reimburse the ChampionsGate Hotel Master
Servicer, the ChampionsGate Hotel Special Servicer or the ChampionsGate
Hotel Trustee, as applicable, out of general collections on the Mortgage
Loans and any REO Properties, the Trust Fund's pro rata share of any
ChampionsGate Hotel Nonrecoverable Servicing Advance and (C) to reimburse
the One Park Avenue Master Servicer, One Park Avenue Special Servicer or
the One Park Avenue Trustee, as applicable, out of general collections on
the Mortgage Loans and any REO Properties, the Trust Fund's pro rata
share of any One Park Avenue Nonrecoverable Servicing Advance;
(viii) to pay the Trustee, the Master Servicer, or the Special
Servicer as applicable, any Advance Interest due and owing thereto out of
Default Charges collected on the Mortgage Pool, as and to the extent
contemplated by Section 3.27;
(ix) (A) to the extent that, during any Collection Period, the
Master Servicer has reimbursed or is reimbursing itself, the Special
Servicer and the Trustee, as applicable, for any unreimbursed Advance
pursuant to clause (ii), (vi) or (vii) of this Section 3.05(a) or
pursuant to Section 3.03, and insofar as payment has not already been
made, and the Default Charges then on deposit in the Certificate Account
is not sufficient to make such payment pursuant to clause (viii) of this
Section 3.05(a), to pay the Master Servicer, the Special Servicer or the
Trustee, as the case may be, out of general collections on the Mortgage
Loans and any REO Properties (exclusive of each Mortgage Loan or REO Loan
included in a Whole Loan or any REO Property securing a Whole Loan to the
extent such reimbursement was paid out of collections from the related
Serviced Whole Loan Custodial Account), any related Advance Interest
accrued and payable on the portion of such Advance so reimbursed or being
reimbursed; (B) at such time as it reimburses the ChampionsGate Hotel
Master Servicer, the ChampionsGate Hotel Special Servicer or the
ChampionsGate Hotel Trustee, as applicable, for the Trust Fund's pro rata
share of any ChampionsGate Hotel Nonrecoverable Servicing Advance, to pay
to the ChampionsGate Hotel Master Servicer, the ChampionsGate Hotel
Special Servicer and the ChampionsGate Hotel Trustee, as applicable, out
of general collections on the Mortgage Loans and any REO Properties,
interest accrued and payable on the Trust Fund's pro rata share of such
ChampionsGate Hotel Nonrecoverable Servicing Advance; and (C) at such
time as it reimburses the One Park Avenue Master Servicer, the One Park
Avenue Special Servicer or the One Park Avenue Trustee, as applicable,
for the Trust Fund's pro rata share of any One Park Avenue Nonrecoverable
Servicing Advance, to pay to the One Park Avenue Master Servicer, One
Park Avenue Special Servicer and the One Park Avenue Trustee, as
applicable, out of general collections on the Mortgage Loans and any REO
Properties, interest accrued and payable on the Trust Fund's pro rata
share of such One Park Avenue Nonrecoverable Servicing Advance;
(x) to pay any outstanding expense, other than Advance Interest,
that was incurred with respect to any Mortgage Loan or related REO Loan
(exclusive of each Mortgage Loan or REO Loan included in a Whole Loan or
any REO Property securing a Whole Loan to the extent such payment was
paid out of collections from the related Serviced Whole Loan Custodial
Account) and that, if paid from a source other than Default Charges
collected on the Mortgage Pool, would constitute an Additional Trust Fund
Expense, such payment to be made out of Default Charges collected on the
Mortgage Pool, as and to the extent contemplated by Section 3.27;
(xi) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the Special Servicer any items of Additional
Special Servicing Compensation to which it is entitled, in each case from
funds on deposit in the Certificate Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with
respect to any Mortgage Loan or REO Property (exclusive of each Mortgage
Loan or REO Loan included in an A/B Whole Loan or any REO Property
securing a Whole Loan to the extent such payment was paid out of
collections from the related Serviced Whole Loan Custodial Account) such
payments to be made: first, out of payments, Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds and, if applicable, REO
Revenues received in respect of such Mortgage Loan or REO Property, as
the case may be and then, out of general collections on other Mortgage
Loans and REO Properties (exclusive of each Mortgage Loan or REO Loan
included in a Whole Loan or any REO Property securing a Whole Loan to the
extent such payment was paid out of collections from the related Serviced
Whole Loan Custodial Account);
(xiii) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Loans and any REO Properties (exclusive of
each Mortgage Loan or REO Loan included in a Whole Loan or any REO
Property securing a Whole Loan to the extent such payment was paid out of
collections from the related Serviced Whole Loan Custodial Account),
certain servicing expenses that would, if advanced, constitute
Nonrecoverable Servicing Advances;
(xiv) to pay, out of general collections on the Mortgage Loans
and any REO Properties (exclusive of each Mortgage Loan or REO Loan
included in a Whole Loan or any REO Property securing a Whole Loan to the
extent such payment was paid out of collections from the related Serviced
Whole Loan Custodial Account), costs and expenses incurred by the Trust
Fund pursuant to Section 3.09(c) (other than the costs of environmental
testing, which are to be covered by, and reimbursable as, a Servicing
Advance);
(xv) to pay itself, the Special Servicer, the Depositor, the
Trustee, or any of their respective directors, officers, members,
managers, employees and agents, as the case may be, out of general
collections on the Mortgage Loans and any REO Properties any amounts
payable to any such Person pursuant to Section 6.03, Section 7.01(b) or
Section 8.05(b), as applicable;
(xvi) to pay, out of general collections on the Mortgage Loans
and REO Properties (exclusive of each Mortgage Loan or REO Loan included
in a Whole Loan or any REO Property securing a Whole Loan to the extent
such payment was paid out of collections from the related Serviced Whole
Loan Custodial Account), for the cost of recording this Agreement in
accordance with Section 12.02(a);
(xvii) to pay, out of general collections on the Mortgage Loans
and any REO Properties (exclusive of any such amount arising in respect
of each Mortgage Loan or REO Loan included in a Whole Loan or any REO
Property securing a Whole Loan to the extent such payment was paid out of
collections from the related Serviced Whole Loan Custodial Account), any
reasonable out-of-pocket cost or expense (including the reasonable fees
of tax accountants and attorneys) incurred by the Trustee pursuant to
Section 3.17(b) in connection with providing advice to the Special
Servicer;
(xviii) (A) to pay to the Master Servicer, the Special Servicer,
the Trustee or the Depositor, as the case may be, any amount specifically
required to be paid to such Person at the expense of the Trust Fund under
any provision of this Agreement to which reference is not made in any
other clause of this Section 3.05(a) (exclusive of any such amount
arising in respect of a Mortgage Loan included in a Whole Loan to the
extent such payment was paid out of collections from the related Serviced
Whole Loan Custodial Account), it being acknowledged that this clause
(xviii) shall not be construed to modify any limitation otherwise set
forth in this Agreement on the time at which any Person is entitled to
payment or reimbursement of any amount or the funds from which any such
payment or reimbursement is permitted to be made and (B) with respect to
any Non-Serviced Mortgage Loan, to reimburse the related Non-Serviced
Loan Master Servicer, Non-Serviced Loan Special Servicer or Non-Serviced
Loan Trustee, as applicable for the pro rata portion of any Additional
Trust Fund Expenses (as such term is defined in the related Non-Serviced
Loan Pooling Agreement) that relate exclusively to the servicing of such
Non-Serviced Loan out of general collections on the Mortgage Loans and
the REO Properties;
(xix) to pay the Master Servicer, the Special Servicer, the
Mortgage Loan Sellers, a Controlling Class Certificateholder or any other
particular Person, as the case may be, with respect to each Mortgage Loan
(exclusive of any such amount arising in respect of each Mortgage Loan
included in a Whole Loan to the extent such payment was paid out of
collections from the Serviced Whole Loan Custodial Account), if any,
previously purchased or otherwise removed from the Trust Fund by such
Person pursuant to or as contemplated by this Agreement, all amounts
received thereon subsequent to the date of purchase;
(xx) to transfer Excess Liquidation Proceeds (exclusive of Excess
Liquidation Proceeds received with respect to a Mortgage Loan included
the Whole Loan to the extent such payment was paid out of collections
from the Serviced Whole Loan Custodial Account) to the Excess Liquidation
Proceeds Account in accordance with Section 3.04(c)(iv);
(xxi) to withdraw any amounts deposited in error; and
(xxii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Certificate Account at any
particular time (after withdrawing any portion of such amounts deposited into
the Certificate Account in error) are insufficient to satisfy all payments,
reimbursements and remittances to be made therefrom as set forth in clauses (ii)
through (xx) of this Section 3.05(a), then the corresponding withdrawals from
the Certificate Account shall be made in the following priority and subject to
the following rules: (A) if the payment, reimbursement or remittance is to be
made from a specific source of funds, then such payment, reimbursement or
remittance shall be made from that specific source of funds on a pro rata basis
with any and all other payments, reimbursements and remittances to be made from
such specific source of funds; and (B) if the payment, reimbursement or
remittance can be made from any funds on deposit in the Certificate Account,
then (following any withdrawals made from the Certificate Account in accordance
with the immediately preceding clause (A) of this Section 3.05(a)) such payment,
reimbursement or remittance shall be made from such general funds remaining on a
pro rata basis with any and all other payments, reimbursements or remittances to
be made from such general funds; provided that any reimbursements of Advances in
respect of any particular Mortgage Loan or REO Property out of the Certificate
Account pursuant to any of clauses (ii), (vi) and (vii) of this Section 3.05(a),
and any payments of interest thereon out of the Certificate Account pursuant to
either of clauses (viii) and (ix) of this Section 3.05(a), shall be made (to the
extent of their respective entitlements to such reimbursements and/or payments):
first, to the Trustee and second, pro rata, to the Master Servicer and Special
Servicer.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis (and on a property-by-property basis for REO
Loans) when appropriate, in connection with any withdrawal from the Certificate
Account pursuant to clauses (ii) through (xx) of this Section 3.05(a) sufficient
to determine the amounts attributable to REMIC I or, in the case of a withdrawal
not related to a specific Mortgage Loan, allocable pro rata based on relative
aggregate Stated Principal Balances.
The Master Servicer shall pay to the Special Servicer (or to
third party contractors at the direction of the Special Servicer) from the
Certificate Account amounts permitted to be paid to it (or to such third party
contractors) therefrom promptly upon receipt of a certificate of a Servicing
Officer of the Special Servicer describing the item and amount to which the
Special Servicer (or such third party contractors) is entitled. The Master
Servicer may rely conclusively on any such certificate and shall have no duty to
recalculate the amounts stated therein. The Special Servicer shall keep and
maintain separate accounting for each Specially Serviced Loan and REO Property,
on a loan-by-loan and property-by-property basis, for the purpose of justifying
any request for withdrawal from the Certificate Account.
Upon the determination that a previously made Advance is a
Nonrecoverable Advance, instead of obtaining reimbursement out of general
collections immediately, the Master Servicer, the Special Servicer or the
Trustee, as applicable, may, in its sole discretion, elect to obtain
reimbursement for such Nonrecoverable Advance over time and the unreimbursed
portion of such Advance will accrue interest at the Reimbursement Rate. If such
an election to obtain reimbursement over time is made, the Master Servicer, the
Special Servicer or the Trustee, as applicable, will, during the first six
months after such nonrecoverability determination was made, only seek
reimbursement for such Nonrecoverable Advance from collections of principal
(with such Nonrecoverable Advances being reimbursed before Workout-Delayed
Reimbursement Amounts). After such initial six months, the Master Servicer, the
Special Servicer or the Trustee, as applicable, may continue to seek
reimbursement for such Nonrecoverable Advance solely from collections of
principal or may seek reimbursement for such Nonrecoverable Advance from general
collections, in each case for a period of time not to exceed an additional six
months (with such Nonrecoverable Advances being reimbursed before
Workout-Delayed Reimbursement Amounts). In the event that the Master Servicer,
the Special Servicer or the Trustee, as applicable, wishes to seek reimbursement
over time after the second six-month period discussed in the preceding sentence,
then the Master Servicer, the Special Servicer or the Trustee, as applicable,
may continue to seek reimbursement for such Nonrecoverable Advance solely from
collections of principal or may seek reimbursement for such Nonrecoverable
Advance from general collections, in either case for such a longer period of
time as agreed to by the Master Servicer, the Special Servicer or the Trustee
(as applicable) and the Directing Certificateholder (with each such applicable
party having the right to agree or disagree in its sole discretion) (with such
Nonrecoverable Advances being reimbursed before Workout-Delayed Reimbursement
Amounts). Notwithstanding the foregoing, at any time after such a determination
to obtain reimbursement over time, the Master Servicer, the Special Servicer or
the Trustee, as applicable, may, in its sole discretion, decide to obtain
reimbursement immediately. The fact that a decision to recover such
Nonrecoverable Advances over time, or not to do so, benefits some Classes of
Certificateholders to the detriment of other Classes shall not, with respect to
the Master Servicer or the Special Servicer, constitute a violation of the
Servicing Standard and/or with respect to the Trustee, constitute a violation of
any fiduciary duty to Certificateholders or contractual duty hereunder. The
Master Servicer, the Special Servicer or the Trustee, as applicable, will give
each Rating Agency three weeks prior notice of its intent to obtain
reimbursement of Nonrecoverable Advances from interest collections as described
above unless (1) the Master Servicer or Special Servicer (or Trustee, if
applicable) determines in its sole discretion that waiting three weeks after
such a notice could jeopardize the Master Servicer's or the Special Servicer's
(or Trustee's, if applicable) ability to recover Nonrecoverable Advances, (2)
changed circumstances or new or different information becomes known to the
Master Servicer or Special Servicer (or Trustee, if applicable) that could
affect or cause a determination of whether any Advance is a Nonrecoverable
Advance, whether to defer reimbursement of a Nonrecoverable Advance or the
determination in clause (1) of this paragraph, or (3) the Master Servicer or
Special Servicer has not timely received from the Trustee information requested
by the Master Servicer or Special Servicer to consider in determining whether to
defer reimbursement of a Nonrecoverable Advance; provided that, if clause (1),
(2) or (3) of this paragraph applies, the Master Servicer or Special Servicer
(or Trustee, if applicable) shall give each Rating Agency notice of an
anticipated reimbursement to it of Nonrecoverable Advances from amounts in the
Certificate Account allocable to interest on the Mortgage Loans as soon as
reasonably practicable in such circumstances. The Master Servicer or Special
Servicer (or Trustee, if applicable) shall have no liability for any loss,
liability or expense resulting from any notice provided to each Rating Agency
contemplated by the immediately preceding sentence.
If the Master Servicer, the Special Servicer or the Trustee, as
applicable, is reimbursed out of general collections for any unreimbursed
Advances that are determined to be Nonrecoverable Advances (together with any
interest accrued and payable thereon), then (for purposes of calculating
distributions on the Certificates) such reimbursement and payment of interest
shall be deemed to have been made: first, out of the Principal Distribution
Amount, that, but for its application to reimburse a Nonrecoverable Advance
and/or to pay interest thereon, would be included in the Available Distribution
Amount for any subsequent Distribution Date, and second, out of other amounts
that, but for their application to reimburse a Nonrecoverable Advance and/or to
pay interest thereon, would be included in the Available Distribution Amount for
any subsequent Distribution Date.
If and to the extent that any payment is deemed to be applied as
contemplated in the paragraph above to reimburse a Nonrecoverable Advance or to
pay interest thereon, then the Principal Distribution Amount for such
Distribution Date shall be reduced, to not less than zero, by the amount of such
reimbursement. If and to the extent: (i) any Advance is determined to be a
Nonrecoverable Advance, (ii) such Advance and/or interest thereon is reimbursed
out of the Principal Distribution Amount as contemplated above and (iii) the
particular item for which such Advance was originally made is subsequently
collected out of payments or other collections in respect of the related
Mortgage Loan, then the Principal Distribution Amount for the Distribution Date
that corresponds to the Collection Period in which such item was recovered shall
be increased by an amount equal to the lesser of (A) the amount of such item and
(B) any previous reduction in the Principal Distribution Amount for a prior
Distribution Date as contemplated in the paragraph above resulting from the
reimbursement of the subject Advance and/or the payment of interest thereon.
To the extent a Nonrecoverable Advance with respect to a Mortgage
Loan is required to be reimbursed from the principal portion of the general
collections on the Mortgage Loans pursuant to this Section 3.05(a), such
reimbursement shall be made first, from the principal collections available on
the Mortgage Loans included in the same Loan Group as such Mortgage Loan and if
the principal collections in such Loan Group are not sufficient to make such
reimbursement in full, then from the principal collections available in the
other Loan Group (after giving effect to any reimbursement of Nonrecoverable
Advances related to such other Loan Group). To the extent the Principal
Distribution Amount for a Distribution Date is increased as set forth in
preceding paragraph, such increase shall be allocated first to the principal
collections in the Loan Group with respect to which the Mortgage Loan as to
which the related Nonrecoverable Advance was made does not belong, and then to
the Loan Group with respect to which the Mortgage Loan as to which the related
Nonrecoverable Advance was made does belong.
If one or more unreimbursed Workout-Delayed Reimbursement Amounts
exist, then such Workout-Delayed Reimbursement Amounts will be reimbursable only
from amounts in the Certificate Account that represent collections of principal
on the Mortgage Loans (net of any collections of principal applied to
reimbursement of Nonrecoverable Advances or interest thereon); provided,
however, on any Distribution Date when (1) less than 10% of the initial
aggregate Stated Principal Balance of the Mortgage Pool is outstanding and (2)
the sum of the aggregate unpaid Nonrecoverable Advances plus the aggregate
unpaid Workout-Delayed Reimbursement Amounts that have not been reimbursed to
the Master Servicer, Special Servicer or Trustee, as applicable, exceeds 20% of
the aggregate Stated Principal Balance of the Mortgage Pool then outstanding,
then the Master Servicer, the Special Servicer or the Trustee, as applicable,
may obtain reimbursement of any outstanding Workout-Delayed Reimbursement Amount
from principal collections or any other amounts in the Certificate Account,
including but not limited to interest collected on the Mortgage Loans, if
principal is not sufficient to pay such amounts; provided, further, however, the
foregoing shall not in any manner limit the right of the Master Servicer, the
Special Servicer or the Trustee, as applicable, to choose voluntarily to seek
reimbursement of Workout-Delayed Reimbursement Amounts solely from collections
of principal. The Master Servicer, the Special Servicer or the Trustee, as
applicable, will give each Rating Agency three weeks prior notice of its intent
to obtain reimbursement of Workout-Delayed Reimbursement Amounts from interest
collections as described in the preceding sentence.
If the Master Servicer, the Special Servicer or the Trustee, as
applicable, is reimbursed out of general collections for any Workout-Delayed
Reimbursement Amounts, then (for purposes of calculating distributions on the
Certificates) such reimbursement and payment of interest shall be deemed to have
been made: first, out of the Principal Distribution Amount, that, but for its
application to reimburse a Workout-Delayed Reimbursement Amount, would be
included in the Available Distribution Amount for any subsequent Distribution
Date and second, out of other amounts that, but for their application to
reimburse a Workout-Delayed Reimbursement Amount, would be included in the
Available Distribution Amount for any subsequent Distribution Date.
If and to the extent that any payment is deemed to be applied as
contemplated in the paragraph above to reimburse a Workout-Delayed Reimbursement
Amount, then the Principal Distribution Amount for such Distribution Date shall
be reduced, to not less than zero, by the amount of such reimbursement. If and
to the extent: (i) such Workout-Delayed Reimbursement Amount is reimbursed out
of the Principal Distribution Amount as contemplated above and (ii) the
particular item for which such Workout-Delayed Reimbursement Amount was
originally made is subsequently collected out of payments or other collections
in respect of the related Mortgage Loan, then the Principal Distribution Amount
for the Distribution Date that corresponds to the Collection Period in which
such item was recovered shall be increased by an amount equal to the lesser of
(A) the amount of such item and (B) any previous reduction in the Principal
Distribution Amount for a prior Distribution Date as contemplated in the
paragraph above resulting from the reimbursement of the subject Workout-Delayed
Reimbursement Amount.
To the extent a Workout-Delayed Reimbursement Amount with respect
to a Mortgage Loan is required to be reimbursed from the principal portion of
the general collections on the Mortgage Loans pursuant to clause (vii) of this
Section 3.05(a), such reimbursement shall be made first, from the principal
collections available on the Mortgage Loans included in the same Loan Group as
such Mortgage Loan and, if the principal collections in such Loan Group are not
sufficient to make such reimbursement in full, then from the principal
collections available in the other Loan Group (after giving effect to any
reimbursement of Nonrecoverable Advances related to such other Loan Group). To
the extent the Principal Distribution Amount for a Distribution Date is
increased as set forth in preceding paragraph, such increase shall be allocated
first to the principal collections in the Loan Group with respect to which the
Mortgage Loan as to which the related Workout-Delayed Reimbursement Amount was
reimbursed does not belong, and then to the Loan Group with respect to which the
Mortgage Loan as to which the related Workout-Delayed Reimbursement Amount was
reimbursed does belong.
For the avoidance of doubt, notwithstanding anything contained in
this Agreement to the contrary, the right of any Person hereunder to recover
amounts owing with respect to a Whole Loan from the Certificate Account and/or
the related Serviced Whole Loan Custodial Account shall be without duplication.
(b) The Trustee may, from time to time, make withdrawals from the
REMIC I Distribution Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to be deemed to transfer from the REMIC I Distribution
Account to the REMIC II Distribution Account on or before the related
Distribution Date the Available Distribution Amount as provided in
Section 4.01(a)(ii) and Prepayment Premiums to be distributed in respect
of the REMIC I Regular Interests, as contemplated by Section 4.01(a)(i),
and to make distributions to the Class R-I Certificates pursuant to
Section 4.01(a)(iii) or Section 9.01, as applicable;
(ii) to pay the Trustee accrued and unpaid Trustee Fees pursuant
to Section 8.05(a) and to reimburse the Trustee for any other amounts to
which it is entitled to be reimbursed from the Distribution Account
pursuant to this Agreement;
(iii) to pay the Trustee or any of its respective directors,
officers, employees and agents, as the case may be, any amounts payable
or reimbursable to any such Person pursuant to Section 8.05(b);
(iv) as contemplated by Section 12.01(h), to pay for the
reasonable costs of the Opinions of Counsel sought by the Trustee as
contemplated by Section 12.01(a) or 12.01(d) in connection with any
amendment to this Agreement requested by the Trustee, provided such
amendment is in furtherance of the rights and interests of
Certificateholders;
(v) to pay for the reasonable costs of the Opinions of Counsel
sought by the Trustee as contemplated by Section 12.02(a);
(vi) to (A) pay any and all federal, state and local taxes
imposed on REMIC I or REMIC II or on the assets or transactions of any
such REMIC, together with all incidental costs and expenses, and any and
all reasonable expenses relating to tax audits, if and to the extent that
either (1) none of the Trustee, the Master Servicer, the Special Servicer
or the REMIC Administrator is liable therefor pursuant to Section
10.01(d) and/or Section 10.01(h) or (2) any such Person that may be so
liable has failed to timely make the required payment, and (B) reimburse
the REMIC Administrator for reasonable expenses incurred by and
reimbursable to it by the Trust pursuant to Section 10.01(d) and/or
Section 10.01(h); and
(vii) to clear and terminate the REMIC I Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
Taxes imposed on REMIC I or REMIC II shall be allocated to the
related REMIC.
(c) The Trustee shall be deemed to make withdrawals from the
REMIC II Distribution Account for any of the following purposes: (i) to make
distributions to Certificateholders (other than Holders of the Class A-2FL,
Class A-MFL and Class R-I Certificates) on each Distribution Date pursuant to
Section 4.01(b), Section 4.01(c)(i) or Section 9.01, as applicable, to make
distributions to the Class A-2FL Floating Rate Account with respect to the Class
A-2FL Regular Interest pursuant to this Agreement and to make distributions to
the Class A-MFL Floating Rate Account with respect to the Class A-MFL Regular
Interest pursuant to this Agreement; and (ii) to clear and terminate the REMIC
II Distribution Account at the termination of this Agreement pursuant to Section
9.01.
(d) On each Distribution Date, the Trustee shall withdraw from
the Excess Liquidation Proceeds Account and deposit into the Distribution
Account, for distribution on such Distribution Date, an amount equal to the
lesser of: (i) the entire amount, if any, then on deposit in the Excess
Liquidation Proceeds Account and (ii) the excess, if any, of the aggregate
amount distributable on such Distribution Date pursuant to Section 4.01(a) and
Section 4.01(b), over the Available Distribution Amount for such Distribution
Date (calculated without regard to such transfer from the Excess Liquidation
Proceeds Account to the Distribution Account); provided that on the Business Day
prior to the Final Distribution Date, the Trustee shall withdraw from the Excess
Liquidation Proceeds Account and deposit into the Distribution Account, for
distribution on such Distribution Date, any and all amounts then on deposit in
the Excess Liquidation Proceeds Account.
(e) The Trustee, the Depositor, the Master Servicer and the
Special Servicer shall in all cases have a right prior to the Certificateholders
to any particular funds on deposit in the Certificate Account and the
Distribution Account from time to time for the reimbursement or payment of
compensation, Advances (with interest thereon at the Reimbursement Rate) and
their respective expenses hereunder, but only if and to the extent such
compensation, Advances (with interest) and expenses are to be reimbursed or paid
from such particular funds on deposit in the Certificate Account or the
Distribution Account pursuant to the express terms of this Agreement.
(f) The Master Servicer may (and, with respect to clause (i),
shall), from time to time, make withdrawals from each Serviced Whole Loan
Custodial Account, for any of the following purposes (the order set forth below
not constituting an order of priority for such withdrawals):
(i) to make remittances each month no later than the Master
Servicer Remittance Date, in an aggregate amount of immediately available
funds equal to the applicable portion of the Serviced Whole Loan
Remittance Amount, to the related Companion Loan Holder and to the
Certificate Account for the benefit of the Trust (as holder of the
related Mortgage Loan or any related REO Loan), in accordance with the
related Intercreditor Agreement; provided, however, any Liquidation
Proceeds relating to any repurchase of the Companion Loan related to a
Serviced Whole Loan by the related seller thereof shall be remitted
solely to the related Companion Loan Holder and Liquidation Proceeds
relating to the repurchase of a Mortgage Loan related to a Serviced Whole
Loan by the related Mortgage Loan Seller shall be remitted solely to the
Certificate Account; provided that any Liquidation Proceeds related to a
sale pursuant to Section 3.18 or pursuant to the related Intercreditor
Agreement of a Mortgage Loan included in a Serviced Whole Loan shall be
deposited directly into the Certificate Account and applied solely to pay
expenses relating to that Mortgage Loan and to the Available Distribution
Amount, and any Liquidation Proceeds related to a sale pursuant to
Section 3.18 of a Companion Loan shall be deposited into the related
Serviced Whole Loan Custodial Account and applied solely to pay expenses
relating to such Companion Loan and to pay amounts due to the related
Companion Loan Holder;
(ii) to reimburse the Master Servicer or the Trustee, as
applicable, for xxxxxxxxxxxx X&X Advances made with respect to such
Mortgage Loan or, in the case of the Trustee, with respect to the related
Mortgage Loan, the Master Servicer's and the Trustee's, as the case may
be, respective rights to reimbursement pursuant to this clause (ii) with
respect to any P&I Advance (other than Nonrecoverable P&I Advances, which
are reimbursable pursuant to clause (vii) of this Section 3.05(f)) or
principal and/or interest advance being limited to amounts that represent
Late Collections of interest and principal received in respect of the
particular Serviced Whole Loan as to which such P&I Advance or principal
and/or interest advance was made (net of related Master Servicing Fees
and/or Workout Fees);
(iii) to pay to the Master Servicer earned and unpaid Master
Servicing Fees in respect of such Serviced Whole Loan and related REO
Loan, the Master Servicer's right to payment pursuant to this clause
(iii) with respect to any Serviced Whole Loan or REO Loan being payable
from, and limited to, amounts received on or in respect of such Serviced
Whole Loan (whether in the form of payments, Liquidation Proceeds,
Condemnation Proceeds or Insurance Proceeds) or such REO Loan (whether in
the form of REO Revenues, Liquidation Proceeds or Insurance Proceeds)
that are allocable as a recovery of interest thereon;
(iv) to pay to the Special Servicer, out of general collections
on such Serviced Whole Loan and related REO Properties, earned and unpaid
Special Servicing Fees in respect of such Serviced Whole Loan and related
REO Properties;
(v) to pay to the Special Servicer earned and unpaid Workout Fees
and Liquidation Fees to which it is entitled pursuant to, and from the
sources contemplated by, Section 3.11(c);
(vi) to reimburse itself, the Special Servicer or the Trustee, as
applicable, for any unreimbursed Servicing Advances with respect to such
Serviced Whole Loan or related REO Property made thereby, the Master
Servicer's, the Special Servicer's and the Trustee's, as the case may be,
respective rights to reimbursement pursuant to this clause (vi) with
respect to any Servicing Advance (other than Nonrecoverable Servicing
Advances, which are reimbursable pursuant to clause (vii) of this Section
3.05(f)) being limited to (A) payments made by the related Mortgagor that
are allocable to cover the item in respect of which such Servicing
Advance was made, and (B) Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds and, if applicable, REO Revenues received in respect
of such Serviced Whole Loan or REO Property as to which such Servicing
Advance was made;
(vii) to reimburse the Master Servicer, the Special Servicer or
the Trustee, as applicable, out of general collections on such Serviced
Whole Loan or REO Property, for any unreimbursed related Advances made
thereby that have been determined to be Nonrecoverable Advances;
(viii) to pay the Trustee, the Master Servicer, or the Special
Servicer as applicable, any Advance Interest due and owing thereto out of
Default Charges collected on such Serviced Whole Loan the portion of
Default Charges allocated thereto in the related Intercreditor Agreement,
as and to the extent contemplated by Section 3.27;
(ix) to the extent that, during any Collection Period, the Master
Servicer has reimbursed or is reimbursing itself, the Special Servicer or
the Trustee, as applicable, for any unreimbursed Advance pursuant to
clause (ii), (vi) or (vii) of this Section 3.05(f) or pursuant to Section
3.03, and insofar as payment has not already been made, and the Default
Charges then on deposit in such Serviced Whole Loan Custodial Account is
not sufficient to make such payment pursuant to clause (viii) of this
Section 3.05(f), to pay the Master Servicer, the Special Servicer or the
Trustee, as the case may be, out of general collections on such Serviced
Whole Loan and related REO Property, any related Advance Interest accrued
and payable on the portion of such Advance so reimbursed or being
reimbursed;
(x) to pay any outstanding expense, other than Advance Interest,
that was incurred with respect to such Serviced Whole Loan and that, if
paid from a source other than Default Charges collected on such Serviced
Whole Loan, would constitute an Additional Trust Fund Expense, such
payment to be made out of Default Charges collected on such Serviced
Whole Loan, as and to the extent contemplated by Section 3.27;
(xi) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the Special Servicer any items of Additional
Special Servicing Compensation to which it is entitled, in each case with
respect to such Serviced Whole Loan from funds collected on such Serviced
Whole Loan that are on deposit in such Serviced Whole Loan Custodial
Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with
respect to such Serviced Whole Loan or REO Property, such payments to be
made, first, out of payments, Insurance Proceeds, Condemnation Proceeds
or Liquidation Proceeds and, if applicable, REO Revenues received in
respect of such Serviced Whole Loan or REO Property, as the case may be,
and then, out of general collections on such Serviced Whole Loan or REO
Property;
(xiii) to pay, in accordance with Section 3.11(i), out of general
collections on such Serviced Whole Loan and REO Property, certain
servicing expenses with respect to such Serviced Whole Loan that would,
if advanced, constitute Nonrecoverable Servicing Advances;
(xiv) to pay, out of general collections on such Serviced Whole
Loan and REO Property, costs and expenses incurred by the related
Companion Loan Holder pursuant to Section 3.09(c) (other than the costs
of environmental testing, which are to be covered by, and reimbursable
as, a Servicing Advance);
(xv) to pay itself, the Special Servicer, the Depositor, the
Trustee or any of their respective directors, officers, members,
managers, employees and agents, as the case may be, out of general
collections on such Serviced Whole Loan or REO Property, any amounts
payable to any such Person pursuant to Section 6.03, Section 7.01(b) or
Section 8.05(b), as applicable, with respect to such Serviced Whole Loan;
(xvi) [RESERVED];
(xvii) to pay, out of general collections on such Serviced Whole
Loan and REO Property, any reasonable out-of-pocket cost or expense
(including the reasonable fees of tax accountants and attorneys) incurred
by the Trustee pursuant to Section 3.17(b) in connection with providing
advice to the Special Servicer with respect to such Serviced Whole Loan;
(xviii) to pay to the Master Servicer, the Special Servicer, the
Trustee or the Depositor, as the case may be, to the extent that such
amount is related to the Mortgage Loan included in such Serviced Whole
Loan, any amount specifically required to be paid to such Person at the
expense of the Trust Fund under any provision of this Agreement to which
reference is not made in any other clause of this Section 3.05(f), it
being acknowledged that this clause (xviii) shall not be construed to
modify any limitation otherwise set forth in this Agreement on the time
at which any Person is entitled to payment or reimbursement of any amount
or the funds from which any such payment or reimbursement is permitted to
be made;
(xix) to pay the Master Servicer, the Special Servicer, the
related Mortgage Loan Seller, a Controlling Class Certificateholder or
any other particular Person, as the case may be, (i) with respect to the
Mortgage Loan related to such Serviced Whole Loan, if any, previously
purchased or otherwise removed from the Trust Fund by such Person
pursuant to or as contemplated by this Agreement or (ii) with respect to
any Companion Loan related to such Serviced Whole Loan purchased by such
Person pursuant to or as contemplated by the related Intercreditor
Agreement or this Agreement, all amounts received thereon subsequent to
the date of purchase, to the extent payable in respect of such Loan;
(xx) to transfer Excess Liquidation Proceeds related to the
Mortgage Loan included in such Serviced Whole Loan to the Excess
Liquidation Proceeds Account in accordance with Section 3.04(e);
(xxi) to withdraw any amounts deposited into such Serviced Whole
Loan Custodial Account in error; and
(xxii) to clear and terminate such Serviced Whole Loan Custodial
Account at the termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in such Serviced Whole Loan Custodial
Account at any particular time (after withdrawing any portion of such amounts
deposited into such Serviced Whole Loan Custodial Account in error) are
insufficient to satisfy all payments, reimbursements and remittances to be made
therefrom as set forth in clauses (ii) through (xx) of this Section 3.05(f),
then the corresponding withdrawals from such Serviced Whole Loan Custodial
Account shall be made in the following priority and subject to the following
rules: (A) if the payment, reimbursement or remittance is to be made from a
specific source of funds, then such payment, reimbursement or remittance shall
be made from that specific source of funds on a pro rata basis with any and all
other payments, reimbursements and remittances to be made from such specific
source of funds; and (B) if the payment, reimbursement or remittance can be made
from any funds on deposit in such Serviced Whole Loan Custodial Account, then
(following any withdrawals made from such Serviced Whole Loan Custodial Account
in accordance with the immediately preceding clause (A) of this paragraph) such
payment, reimbursement or remittance shall be made from such general funds
remaining on a pro rata basis with any and all other payments, reimbursements or
remittances to be made from such general funds; provided that any reimbursements
of Advances in respect of such Serviced Whole Loan or REO Property out of such
Serviced Whole Loan Custodial Account pursuant to any of clauses (ii), (vi) and
(vii) of this Section 3.05(f), and any payments of interest thereon out of such
Serviced Whole Loan Custodial Account pursuant to either of clauses (viii) and
(ix) of this Section 3.05(f), shall be made (to the extent of their respective
entitlements to such reimbursements and/or payments): first, to the Trustee; and
second, pro rata, to the Master Servicer and Special Servicer; provided, further
with respect to a Serviced Whole Loan that is an A/B Loan, any such
reimbursements shall be made from funds otherwise allocable to the related Note
B prior to being reimbursed from funds allocable to the related Mortgage Loan.
The Master Servicer shall also be entitled to make withdrawals
from time to time, from the Serviced Whole Loan Custodial Account of amounts
necessary for the payments or reimbursement of amounts required to be paid with
respect to a Securitized Companion Loan (included in a Serviced Whole Loan) to
the master servicer, the special servicer and the trustee under the related
Securitized Companion Loan Pooling Agreement pursuant to the applicable
Intercreditor Agreement.
Notwithstanding anything to the contrary in this Section 3.05(f),
the Master Servicer acknowledges its obligations under the related Intercreditor
Agreement to remit funds thereunder then due and owing to the holder of the
Companion Loan related to such Serviced Whole Loan in the time frames set forth
therein.
The Master Servicer and the Special Servicer, as applicable,
shall notify the Trustee in writing of any transfer of the Companion Loan
related to a Whole Loan, specifically identifying the name, address and contact
information of the transferee if the Master Servicer and the Special Servicer,
as applicable, has received actual written notice from the transferee of such
transferee's name, address and contact information.
Notwithstanding anything contained in this Agreement to the
contrary, the Master Servicer or the Special Servicer, as applicable, shall be
permitted (but shall have no affirmative obligation whatsoever or be otherwise
required under this Agreement) to structure the time of recoveries of
Nonrecoverable Advances in such a manner as the Master Servicer or the Special
Servicer, as applicable, determines, in accordance with the Servicing Standard,
is in the best interest of the Certificateholders as a collective whole, which
may include being reimbursed for Nonrecoverable Advances in installments over
time.
(g) If any Loss of Value Payments are deposited into the Loss of
Value Reserve Fund with respect to any Loan or any related REO Property, then
the Special Servicer shall, promptly when needed, transfer such Loss of Value
Payments (up to the remaining portion thereof) from the Loss of Value Reserve
Fund to the Master Servicer for deposit into the Certificate Account for the
following purposes:
(i) to reimburse the Master Servicer, the Special Servicer or the
Trustee, in accordance with Section 3.05(a), for any Nonrecoverable
Advance made by such party with respect to such Loan or any related REO
Property (together with interest thereon);
(ii) to pay, in accordance with Section 3.05(a), or to reimburse
the Trust for the prior payment of, any expense relating to such Loan or
any related REO Property that constitutes or, if not paid out of such
Loss of Value Payments, would constitute an Additional Trust Fund
Expense;
(iii) to offset any Realized Loss (as calculated without regard
to the application of such Loss of Value Payments) incurred with respect
to such Loan or any successor REO Loan with respect thereto;
(iv) following the occurrence of a liquidation event or other
disposition with respect to such Mortgage Loan or any related REO
Property, to cover the items contemplated by the immediately preceding
clauses (i) through (iii) of this Section 3.05(g) in respect of any other
Loan or REO Loan; and
(v) on the final Distribution Date after all distributions have
been made as set forth in clauses (i) through (iv) of this Section
3.05(g), to the related Mortgage Loan Seller to offset any Realized
Losses (net of any amount contributed by such Mortgage Loan Seller that
was used pursuant to clauses (i) through (iv) of this Section 3.05(g)).
Any Loss of Value Payments transferred to the Certificate Account
pursuant to clauses (i) through (iii) of the prior paragraph shall, except for
purposes of Section 3.11(c), be deemed to constitute Liquidation Proceeds
received by the Trust in respect of the related Loan or any successor REO Loan
with respect thereto for which such Loss of Value Payments were received; and
any Loss of Value Payments transferred to the Certificate Account pursuant to
clause (iv) of the prior paragraph shall, except for purposes of Section
3.11(c), be deemed to constitute Liquidation Proceeds received by the Trust in
respect of the Loan or REO Loan for which such Loss of Value Payments are being
transferred to the Certificate Account to cover an item contemplated by clauses
(i) through (iii) of the prior paragraph.
On the Business Day immediately prior to the Master Servicer
Remittance Date related to the final Distribution Date, the Special Servicer
shall withdraw from the Loss of Value Reserve Fund and transfer to the Master
Servicer, for deposit in the Certificate Account, any Loss of Value Payments
remaining on deposit in the Loss of Value Reserve Fund. Such Loss of Value
Payments so deposited in the Certificate Account shall constitute part of the
Available Distribution Amount for the final Distribution Date, to the extent
needed to distribute to the Holders of the REMIC II Regular Certificates and the
Class A-2FL Regular Interest and Class A-MFL Regular Interest in accordance with
Section 9.01, all interest then payable thereto, together with the aggregate
Certificate Balance of, and all loss reimbursement amounts for such final
Distribution Date in respect of, the respective Classes of the REMIC II Regular
Certificates and the Class A-2FL Regular Interest and Class A-MFL Regular
Interest and otherwise shall be distributable to the Holders of the REMIC
Residual Certificates on the final Distribution Date.
(h) The Swap Trustee shall make withdrawals from the Class A-2FL Floating Rate
Account in the following order of priority and only for the following purposes:
(i) to withdraw amounts deposited in the Class A-2FL Floating Rate Account in
error and pay such amounts to Persons entitled thereto; (ii) out of interest
amounts to make regularly scheduled payments required to be paid to the Class
A-2FL Swap Counterparty under the Class A-2FL Swap Contract as specified in
Section 3.31(c), provided there is no Class A-2FL Swap Default; (iii) to make
distributions to the Holders of the Class A-2FL Certificates pursuant to Section
4.01(l); and (iv) to clear and terminate the Class A-2FL Floating Rate Account
pursuant to Section 9.01.
The Swap Trustee shall make withdrawals from the Class A-MFL
Floating Rate Account in the following order of priority and only for the
following purposes: (i) to withdraw amounts deposited in the Class A-MFL
Floating Rate Account in error and pay such amounts to Persons entitled thereto;
(ii) out of interest amounts to make regularly scheduled payments required to be
paid to the Class A-MFL Swap Counterparty under the Class A-MFL Swap Contract as
specified in Section 3.32(c), provided there is no Class A-MFL Swap Default;
(iii) to make distributions to the Holders of the Class A-MFL Certificates
pursuant to Section 4.01(o); and (iv) to clear and terminate the Class A-MFL
Floating Rate Account pursuant to Section 9.01.
Section 3.06 Investment of Funds in the Certificate Account, the
Interest Reserve Account, the REMIC I Distribution Account, the REMIC II
Distribution Account, the Excess Liquidation Proceeds Account, the Class A-2FL
Floating Rate Account, the Class A-MFL Floating Rate Account and the REO
Account.
(a) The Master Servicer may direct any depository institution
maintaining the Certificate Account, the Servicing Account, the Interest Reserve
Account and each Serviced Whole Loan Custodial Account, the Special Servicer may
direct any depository institution maintaining each REO Account, and the Trustee
may direct any depository institution maintaining the REMIC I Distribution
Account, the REMIC II Distribution Account, the Class A-2FL Floating Rate
Account, the Class A-MFL Floating Rate Account and the Excess Liquidation
Proceeds Account to invest, or if it is such depository institution, may itself
invest, the funds held therein (each such account, for purposes of this Section
3.06, an "Investment Account") only in one or more Permitted Investments bearing
interest or sold at a discount, and maturing, unless payable on demand, no later
than the Business Day immediately preceding the next succeeding date on which
such funds are required to be withdrawn from such account pursuant to this
Agreement (or (i) in the case of the Class A-2FL Floating Rate Account, maturing
no later than the Business Day immediately preceding the next succeeding date on
which such funds are required to be withdrawn therefrom and paid to the Class
A-2FL Swap Counterparty and (ii) in the case of the Class A-MFL Floating Rate
Account, maturing no later than the Business Day immediately preceding the next
succeeding date on which such funds are required to be withdrawn therefrom and
paid to the Class A-MFL Swap Counterparty). All such Permitted Investments shall
be held to maturity, unless payable on demand, in which case such investments
may be sold at any time. Any investment of funds in an Investment Account shall
be made in the name of the Trustee for the benefit of the Certificateholders
and, in the case of a Permitted Investment in any Investment Account solely
related to a Whole Loan, the related Companion Loan Holder (in its capacity as
such). The Master Servicer (with respect to Permitted Investments of amounts in
the Certificate Account, the Interest Reserve Account, each Serviced Whole Loan
Custodial Account and the Servicing Account) and the Special Servicer (with
respect to Permitted Investments of amounts in each REO Account), on behalf of
the Trustee for the benefit of the Certificateholders and in the case of any
Investment Account solely related to a Whole Loan, the related Companion Loan
Holder, and the Trustee (with respect to the Excess Liquidation Proceeds
Account, the REMIC I Distribution Account, the REMIC II Distribution Account,
the Class A-2FL Floating Rate Account and the Class A-MFL Floating Rate
Account), on behalf of the Certificateholders, shall (and the Trustee hereby
designates the Master Servicer, the Special Servicer or itself, as applicable,
as the Person that shall) (i) be the "entitlement holder" of any Permitted
Investment that is a "security entitlement" and (ii) maintain "control" of any
Permitted Investment that is either a "certificated security" or an
"uncertificated security". For purposes of this Section 3.06(a), the terms
"entitlement holder", "security entitlement", "control", "certificated security"
and "uncertificated security" shall have the meanings given such terms in
Revised Article 8 (1994 Revision) of the UCC, and "control" of any Permitted
Investment by the Master Servicer or the Special Servicer shall constitute
"control" by a Person designated by, and acting on behalf of, the Trustee for
purposes of Revised Article 8 (1994 Revision) of the UCC. If amounts on deposit
in an Investment Account are at any time invested in a Permitted Investment
payable on demand, the Master Servicer (in the case of the Certificate Account,
the Interest Reserve Account, each Serviced Whole Loan Custodial Account and the
Servicing Account) or the Special Servicer (in the case of each REO Account) and
the Trustee (in the case of the Excess Liquidation Proceeds Account, the REMIC I
Distribution Account, the Class A-2FL Floating Rate Account, the Class A-MFL
Floating Rate Account and the REMIC II Distribution Account) shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the
lesser of (1) all amounts then payable thereunder and (2) the amount
required to be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, the Special Servicer or the
Trustee, as the case may be, that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter on
deposit in the Investment Account.
(b) Whether or not the Master Servicer directs the investment of
funds in the Certificate Account, the Interest Reserve Account, each Serviced
Whole Loan Custodial Account and the Servicing Account, interest and investment
income realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for each such Investment Account for each Collection Period,
shall be for the sole and exclusive benefit of the Master Servicer and shall be
subject to its withdrawal in accordance with Section 3.05(a) or Section 3.05(f),
as applicable. Whether or not the Special Servicer directs the investment of
funds in each REO Account, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
such Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.16(b). Whether or not the Trustee directs the
investment of funds in the Excess Liquidation Proceeds Account, the REMIC I
Distribution Account, the Class A-2FL Floating Rate Account, the Class A-MFL
Floating Rate Account and the REMIC II Distribution Account, interest and
investment income realized on funds deposited therein, to the extent of Net
Investment Earnings, if any, for each such Investment Account for each
Collection Period, shall be for the sole and exclusive benefit of the Trustee
and shall be subject to withdrawal by the Trustee. If any loss shall be incurred
in respect of any Permitted Investment on deposit in any Investment Account, the
Master Servicer (in the case of the Interest Reserve Account, the Certificate
Account, each Serviced Whole Loan Custodial Account and the Servicing Account
(with respect to funds invested by the Master Servicer for its own account)),
the Special Servicer (in the case of each REO Account) and the Trustee (in the
case of the Excess Liquidation Proceeds Account, the REMIC I Distribution
Account, the REMIC II Distribution Account, the Class A-2FL Floating Rate
Account and the Class A-MFL Floating Rate Account) shall promptly deposit
therein from its own funds, without right of reimbursement, no later than the
end of the Collection Period during which such loss was incurred, the amount of
the Net Investment Loss, if any, for such Collection Period. The Trustee shall
have no liability whatsoever with respect to any such losses, except in respect
to losses incurred in respect of any Permitted Investment on deposit in the
Excess Liquidation Proceeds Account, the REMIC I Distribution Account the Class
A-2FL Floating Rate Account, the Class A-MFL Floating Rate Account and the REMIC
II Distribution Account; and to the extent that it is the obligor on any such
Permitted Investment.
(c) Except as otherwise expressly provided in this Agreement, if
any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance required under any
Permitted Investment and the Master Servicer or the Special Servicer, as
applicable, has not taken such action, the Trustee may and, subject to Section
8.02, upon the request of Holders of Certificates entitled to not less than 25%
of the Voting Rights allocated to any Class, shall take such action as may be
appropriate to enforce such payment or performance, including, without
limitation, the institution and prosecution of appropriate proceedings.
(d) Notwithstanding the investment of funds held in any
Investment Account, for purposes of the calculations hereunder, including,
without limitation, the calculation of the Available Distribution Amount and the
Master Servicer Remittance Amount, the amounts so invested (but not any interest
earned thereon) shall be deemed to remain on deposit in such Investment Account.
Section 3.07 Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
(a) In the case of each Serviced Loan, the Master Servicer shall
use reasonable efforts consistent with the Servicing Standard to cause each
Mortgagor to maintain, and, if the Mortgagor does not so maintain, the Master
Servicer will itself cause to be maintained, for each Mortgaged Property
(including each Mortgaged Property relating to any Specially Serviced Loan) all
insurance coverage as is required, subject to applicable law, under the related
loan documents; provided that, if and to the extent that any such loan documents
permit the holder thereof any discretion (by way of consent, approval or
otherwise) as to the insurance coverage that the related Mortgagor is required
to maintain, the Master Servicer shall exercise such discretion in a manner
consistent with the Servicing Standard and, prior to the date such existing
insurance expires or is required to be renewed, the Master Servicer may, to the
extent consistent with the Servicing Standard, take into account insurance in
place at loan origination, with a view towards requiring insurance comparable to
that required under other Serviced Loans with express provisions governing such
matters and including business interruption or rental loss insurance for at
least 12 months; and provided, further, the Master Servicer shall be required to
maintain such insurance coverage upon the related Mortgagor's failure to do so
only to the extent that such insurance is available at commercially reasonable
rates and the Trustee, on behalf of the Trust, as mortgagee has an insurable
interest. Subject to Section 3.17(b), the Special Servicer shall also cause to
be maintained for each REO Property (other than with respect to any REO Property
related to a Non-Serviced Loan) no less insurance coverage (to the extent
available at commercially reasonable rates) (A) than was previously required of
the related Mortgagor under the related loan documents and (B), at a minimum,
(i) hazard insurance with a replacement cost rider, (ii) business interruption
or rental loss insurance for at least 12 months, and (iii) commercial general
liability insurance, in each case, in an amount customary for the type and
geographic location of such REO Property and consistent with the Servicing
Standard; provided that all such insurance required to be maintained by Master
Servicer or Special Servicer shall be obtained from Qualified Insurers that, in
each case, shall have a financial strength or claims-paying rating no lower than
two rating categories below the highest rated Certificates outstanding, and in
any event no lower than "A" from Fitch, "A2" from Xxxxx'x and "A" from S&P (or
in such other form and amount or issued by an insurer with such other financial
strength or claims-paying ability as would not, as confirmed in writing by the
relevant Rating Agency, result in an Adverse Rating Event. All such insurance
policies shall contain (if they insure against loss to property) a "standard"
mortgagee clause, with loss payable to the Master Servicer on behalf of the
Trustee (in the case of insurance maintained in respect of the Mortgage Loans),
or shall name the Trustee (and in the case of a Whole Loan the related Companion
Loan Holder) as the insured, with loss payable to the Special Servicer on behalf
of the Trustee (and in the case of a Whole Loan the related Companion Loan
Holder) (in the case of insurance maintained in respect of REO Properties), and
shall be issued by an insurer authorized under applicable law to issue such
insurance, and, unless prohibited by the related Mortgage, may contain a
deductible clause (not in excess of a customary amount). Any amounts collected
by the Master Servicer or Special Servicer under any such policies (other than
amounts to be applied to the restoration or repair of the related Mortgaged
Property or REO Property or amounts to be released to the related Mortgagor, in
each case in accordance with the Servicing Standard) shall be deposited into the
Certificate Account or, if a Serviced Whole Loan is involved, the related
Serviced Whole Loan Custodial Account, subject to withdrawal pursuant to Section
3.05(a), or Section 3.05(f), as applicable in the case of amounts received in
respect of a Loan, or in the applicable REO Account, subject to withdrawal
pursuant to Section 3.16(c), in the case of amounts received in respect of a REO
Property. Any cost incurred by the Master Servicer or Special Servicer in
maintaining any such insurance shall not, for purposes hereof, including
calculating monthly distributions to Certificateholders, be added to unpaid
principal balance or Stated Principal Balance of the related Serviced Loan,
notwithstanding that the terms of such Serviced Loan so permit; provided,
however, this sentence shall not limit the rights of the Master Servicer or
Special Servicer on behalf of the Trust or, if a Whole Loan is involved, on
behalf of the related Companion Loan Holder, to enforce any obligations of the
related Mortgagor under such Serviced Loan. Costs to the Master Servicer or
Special Servicer of maintaining insurance policies pursuant to this Section 3.07
shall be paid by and reimbursable to the Master Servicer or the Special
Servicer, as the case may be, as a Servicing Advance.
If the related loan documents specifically and expressly set
forth terms requiring insurance coverage against terrorist or similar acts for a
Serviced Loan, then the Master Servicer and the Special Servicer shall enforce
the terms of the related loan documents in accordance with the Servicing
Standard, and if the Mortgagor fails to maintain such insurance, such failure
shall constitute a Servicing Transfer Event. To the extent the loan documents do
not set forth specific terms requiring insurance coverage against terrorist or
similar acts and a Serviced Loan (x) requires a Mortgagor to maintain insurance
policies covering some or all of the risks contained in the Additional
Exclusions or (y) in accordance with the Servicing Standard, the Master Servicer
has determined that the loan documents permit the lender to require the
Mortgagor to maintain insurance policies covering some or all the risks
contained in the Additional Exclusions (the covered risks required to be covered
or that the lender has the discretion to require to be covered being referred to
as "Covered Risks"), the Master Servicer shall use reasonable efforts in
accordance with the Servicing Standard to determine whether, upon renewal of the
Mortgagor's property or casualty insurance (including any all risk insurance
policy), any of the Covered Risks are excluded from coverage. If any of the
Covered Risks are determined by the Master Servicer to be excluded from
coverage, the Master Servicer shall request the Mortgagor to either (i) purchase
insurance acceptable to the Master Servicer in accordance with the Servicing
Standard and in accordance with the related loan documents covering such Covered
Risks or (ii) provide a written explanation as to its reasons for failing to
purchase such insurance. Notwithstanding the foregoing, with the written consent
of the Special Servicer in accordance with the Servicing Standard the Master
Servicer may waive the requirement to procure insurance covering any of the
Covered Risks if the Master Servicer determines in accordance with the Servicing
Standard that (1) insurance covering any such Covered Risks is not available at
a commercially reasonable price, or (2) based on information reasonably
available to the Master Servicer, after due inquiry, any such Covered Risks are
at that time not commonly insured against for properties similar to the
Mortgaged Property and located in or around the region in which the Mortgaged
Property is located unless the Stated Principal Balance of the Serviced Loan is
greater than $20,000,000. If the Stated Principal Balance of the Serviced Loan
is greater than $20,000,000, then the Master Servicer must determine that the
circumstances in both clauses (1) and (2) of the immediately preceding sentence
apply prior to waiving the Mortgagor's requirement to procure insurance with
respect to any Covered Risks. If the Special Servicer fails to give a response
to the Master Servicer as referenced in the second preceding sentence within ten
Business Days of the Master Servicer initially notifying the Special Servicer in
writing of such request, the Master Servicer shall promptly notify the Directing
Certificateholder of such failure of the Special Servicer to respond to such
request. If the Directing Certificateholder and/or the Special Servicer have not
responded to the Master Servicer within ten Business Days of the notice
referenced in the immediately preceding sentence, the Master Servicer shall
determine in accordance with the Servicing Standard whether to require (or not
require) the Mortgagor to maintain such insurance; provided, that during the
period that the Special Servicer and/or the Directing Certificateholder are
evaluating such insurance, none of the Master Servicer, the Special Servicer
and/or the Directing Certificateholder shall be liable for any loss related to
its failure to require a Mortgagor to maintain terrorism insurance and shall not
be in default of its obligations hereunder as a result of such failure. If the
Master Servicer requires the Mortgagor to maintain such insurance and the
Mortgagor fails to maintain such insurance, to the extent such insurance is then
reasonably available, the Master Servicer shall then procure such insurance in
accordance with the Servicing Standard and such failure by the Mortgagor shall
constitute a Servicing Transfer Event. For purposes of computing whether the
$20,000,000 threshold described herein is met for a particular Serviced Loan, if
a Serviced Loan is secured by multiple Mortgaged Properties, then the amount
subject to the $20,000,000 threshold shall be the portion of the Stated
Principal Balance of the related Serviced Loan pro rated based on an individual
Mortgaged Property's appraised value as a percentage of the total appraised
value of all of the related Mortgaged Properties.
(b) If the Master Servicer or the Special Servicer shall obtain
and maintain, or cause to be obtained and maintained, a blanket policy or master
force placed policy insuring against hazard losses on all of the Serviced Loans
or REO Properties (other than with respect to any REO Property related to a
Non-Serviced Loan), as applicable, that it is required to service and administer
hereunder, then, to the extent such policy (i) is obtained from a Qualified
Insurer having a financial strength or claims-paying rating no lower than "A"
from Fitch, "A2" from Xxxxx'x and "A" from S&P or having such other financial
strength or claims-paying ability rating as would not, as confirmed in writing
by the relevant Rating Agency, result in an Adverse Rating Event and (ii)
provides protection equivalent to the individual policies otherwise required,
the Master Servicer or Special Servicer, as the case may be, shall conclusively
be deemed to have satisfied its obligation to cause hazard insurance to be
maintained on the related Mortgaged Properties or REO Properties, as applicable.
Such policy may contain a deductible clause (not in excess of a customary
amount), in which case the Master Servicer or the Special Servicer, as
appropriate, shall, if there shall not have been maintained on the related
Mortgaged Property or REO Property a hazard insurance policy complying with the
requirements of Section 3.07(a), and there shall have been one or more losses
that would have been covered by such an individual policy, promptly deposit into
the Certificate Account from its own funds the amount not otherwise payable
under the blanket or master force placed policy in connection with such loss or
losses because of such deductible clause to the extent that any such deductible
exceeds the deductible limitation that pertained to the related Serviced Loan
(or, in the absence of any such deductible limitation, the deductible limitation
for an individual policy that is consistent with the Servicing Standard). The
Master Servicer or the Special Servicer, as appropriate, shall prepare and
present, on behalf of itself, the Trustee and the Certificateholders and, in the
case of a Serviced Whole Loan, the related Companion Loan Holder, claims under
any such blanket or master forced placed policy in a timely fashion in
accordance with the terms of such policy.
(c) Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Loans or REO Properties for which it is responsible exist as part of
the Trust Fund) keep in force with a Qualified Insurer having a financial
strength or claims-paying rating no lower than two rating categories below the
highest rated Certificates outstanding, and in any event no lower than "A" from
Fitch, "A2" from Xxxxx'x and "A" from S&P, a fidelity bond in such form and
amount as would permit it to be a qualified Xxxxxx Mae seller-servicer of
multifamily mortgage loans (or in such other form and amount or issued by an
insurer with such other financial strength or claims-paying ability rating as
would not result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee by the relevant Rating
Agency)). Each of the Master Servicer and the Special Servicer shall be deemed
to have complied with the foregoing provision if an Affiliate thereof has such
fidelity bond coverage and, by the terms of such fidelity bond, the coverage
afforded thereunder extends to the Master Servicer or the Special Servicer, as
the case may be. Such fidelity bond shall provide that it may not be canceled
without ten days' prior written notice to the Trustee.
Each of the Master Servicer and the Special Servicer shall at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Loans and/or REO Properties for which it is responsible exist as part
of the Trust Fund) also keep in force with a Qualified Insurer having a
financial strength or claims-paying rating no lower than two rating categories
below the highest rated Certificates outstanding, and in any event no lower than
"A" from Fitch, "A2" from Xxxxx'x and "A" from S&P, a policy or policies of
insurance covering loss occasioned by the errors and omissions of its officers
and employees in connection with its servicing obligations hereunder, which
policy or policies shall be in such form and amount as would permit it to be a
qualified Xxxxxx Mae seller-servicer of multifamily mortgage loans (or in such
other form and amount or issued by an insurer with such other financial strength
or claims-paying rating as would not result in an Adverse Rating Event with
respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee by the relevant Rating Agency)). Each of the Master Servicer and the
Special Servicer shall be deemed to have complied with the foregoing provisions
if an Affiliate thereof has such insurance and, by the terms of such policy or
policies, the coverage afforded thereunder extends to the Master Servicer or the
Special Servicer, as the case may be. Any such errors and omissions policy shall
provide that it may not be canceled without ten days' prior written notice to
the Trustee. So long as the long-term unsecured debt obligations of the Master
Servicer or the Special Servicer (or its direct or indirect parent company), as
applicable, are rated not lower than "A" from Fitch, "A2" from Xxxxx'x and "A"
from S&P, the Master Servicer or Special Servicer, as applicable, may
self-insure with respect to either or both of the fidelity bond coverage and the
errors and omissions coverage required as described above, in which case it
shall not be required to maintain an insurance policy with respect to such
coverage.
Section 3.08 Enforcement of Alienation Clauses.
(a) As to each Serviced Loan that contains a provision in the
nature of a (i) "due-on-sale" clause (which includes, without limitation, sales
or transfers of the Mortgaged Property (in full or in part) or the sale,
transfer, pledge or hypothecation of direct or indirect interest in the related
Borrower or its owners), which by its terms (1) provides that such Serviced Loan
shall (or may at the mortgagee's option) become due and payable upon the sale or
other transfer of an interest in the related Mortgaged Property or of a
controlling interest in the related Mortgagor; (2) provides that such Serviced
Loan may not be assumed without the consent of the mortgagee or satisfaction of
certain conditions in connection with any such sale or other transfer, for so
long as such Serviced Loan is included in the Trust Fund or (3) provides that
such Serviced Loan may be assumed or transferred without the consent of the
mortgagee provided that certain conditions set forth in the related loan
documents are satisfied, or (ii) as to each Serviced Loan that contains a
provision in the nature of a "due-on-encumbrance" clause (including, without
limitation, any mezzanine financing of the related Borrower or the related
Mortgaged Property or any sale or transfer of preferred equity in such Borrower
or its direct or indirect owners), that by its terms: (1) provides that such
Serviced Loan shall (or may at the mortgagee's option) become due and payable
upon the creation of any additional lien or other encumbrance on the related
Mortgaged Property; (2) requires the consent of the mortgagee or satisfaction of
certain conditions to the creation of any such additional lien or other
encumbrance on the related Mortgaged Property; or (3) provides that such
Serviced Loan may be further encumbered provided that certain conditions set
forth in the loan documents have been satisfied, each of the Master Servicer and
the Special Servicer shall, on behalf of the Trustee as the mortgagee of record,
as to those Serviced Loans it is obligated to service hereunder, exercise (or
waive its right to exercise) any right it may have with respect to such Serviced
Loan (x) to accelerate the payments thereon, (y) to withhold its consent to any
such sale or other transfer, in a manner consistent with the Servicing Standard
or (z) determine whether the conditions set forth in clause (a)(i)(3) of this
paragraph have been satisfied.
Notwithstanding anything to the contrary contained herein,
neither the Master Servicer nor the Special Servicer shall waive any right it
has, or grant any consent it is otherwise entitled to withhold, under any
related "due-on-sale" or "due-on-encumbrance" clause (including, but not limited
to, making any determination that the conditions set forth in Section
3.08(a)(i)(3) and Section 3.08 (a)(ii)(3) have been satisfied), unless both the
Master Servicer and the Special Servicer shall have followed the procedures set
forth for those Loans in the manner set forth in the immediately below clauses
(i) through (vi):
(i) The Master Servicer shall not waive any right it has, or
grant any consent that it may otherwise withhold under any related
"due-on-sale" or "due-on-encumbrance" clause (including, but not limited
to, making any determination that the conditions set forth in Section
3.08(a)(i)(3) and Section 3.08 (a)(ii)(3) have been satisfied) without
first obtaining the consent of the Special Servicer. The Special
Servicer's consent shall be deemed given if the Master Servicer shall
have provided the Special Servicer written notice of the matter together
with all of the information set forth in the immediately succeeding
sentence and all information reasonably requested by the Special Servicer
and the Special Servicer shall not have responded in writing, via fax or
e-mail within 15 Business Days of such request (subject to any extensions
of applicable time periods required if the Special Servicer is required
by this Agreement to seek the consent of other third parties). In
connection with the request set forth above, the Master Servicer shall
provide to the Special Servicer written notice of the matter, a written
explanation of the surrounding circumstances, such additional information
as the Special Servicer shall reasonably request and a request for
approval by the Special Servicer.
(ii) The Special Servicer shall not waive any right it has, or
grant any consent that it may otherwise withhold under any related
"due-on-sale" or "due-on-encumbrance" clause without obtaining the
consent of the Directing Certificateholder for (a) any Non-Partitioned
Loan and/or Post CAP A/B Whole Loan that is a Performing Serviced Loan or
(b) for any Specially Serviced Loan that is a Non-Partitioned Loan and/or
Post CAP A/B Whole Loan. Consent by the Directing Certificateholder shall
be deemed given if the Special Servicer shall have provided the Directing
Certificateholder written notice of the matter together with all of the
information set forth in the immediately succeeding sentence and the
Directing Certificateholder shall not have responded in writing, via fax
or e-mail within ten Business Days of such request. In connection with
the request set forth above, the Special Servicer shall provide to the
Directing Certificateholder written notice of the matter, a written
explanation of the surrounding circumstances, such additional information
as the Directing Certificateholder shall reasonably request and a request
for approval by the Directing Certificateholder.
(iii) With respect to any A/B Whole Loan: (A) the Master Servicer
with respect to those time periods when such Loan is a Performing
Serviced Loan shall not waive any right that it may have, or grant any
consent that it may otherwise withhold under any related "due-on-sale" or
"due-on-encumbrance" clause without obtaining the consent of the Special
Servicer, which consent shall not be given without the Special Servicer
first obtaining the consent of the related Controlling Holder, and (B)
the Special Servicer with respect to those time periods when either such
Loan is a Specially Serviced Loan shall not waive any right that it may
have, or grant any consent that it may otherwise withhold under any
related "due-on-sale" or "due-on-encumbrance" clause without obtaining
the consent of the related Controlling Holder. Consent by a Controlling
Holder shall be deemed given if the Master Servicer or Special Servicer,
as applicable, shall have provided such Controlling Holder written notice
of the matter together with all of the information set forth in the last
sentence of Section 3.08(a)(ii) and such Controlling Holder shall not
have responded in writing, via fax or email within ten Business Days of
such request.
(iv) [RESERVED].
(v) Notwithstanding the foregoing, solely with respect to the
consent or waiver of any "due-on-sale" clause as described in Section
3.08(a), if any Mortgage Loan (other than with respect to any
Non-Serviced Mortgage Loan, which is governed by the related Non-Serviced
Loan Pooling Agreement):
(1) has a then outstanding principal balance of greater
than $5,000,000 and represents greater than 5.0% of the then
outstanding principal balance of the Mortgage Pool;
(2) has a then outstanding principal balance of greater
than $35,000,000; or
(3) has a then outstanding principal balance of greater
than $5,000,000 and is one of the ten largest Mortgage Loans in
the Mortgage Pool based on the then outstanding principal balance
of the Mortgage Pool,
then neither the Master Servicer nor Special Servicer shall waive any right it
has, or grant any consent it is otherwise entitled to withhold, under any
related "due-on-sale" clause until it has received written confirmation from
each Rating Agency that such action would not result in the qualification (if
applicable), downgrade or withdrawal of the rating then assigned by such Rating
Agency to any Class of Certificates.
(vi) Notwithstanding the foregoing, solely with respect to the
consent or waiver of any "due-on-encumbrance" clause as described in
Section 3.08(a), if any Mortgage Loan (other than with respect to any
Non-Serviced Mortgage Loan, which is governed by the related Non-Serviced
Loan Pooling Agreement):
(1) represents greater than 2.0% of the then outstanding
principal balance of the Mortgage Pool;
(2) is at the time one of the ten largest Mortgage Loans
or Cross-Collateralized Set of Mortgage Loans by outstanding
principal balance in the Mortgage Pool or has a then outstanding
principal balance of greater than $20,000,000; or
(3) after taking into consideration any additional
indebtedness secured by the related Mortgaged Property and any
mezzanine debt, the loan-to-value ratio for such Mortgage Loan
would be greater than 85% or the debt service coverage ratio
would be less than 1.20x,
then neither the Master Servicer nor the Special Servicer, as the case may be,
shall waive any right it has, or grant any consent it is otherwise entitled to
withhold, under any related "due-on-encumbrance" clause governing the transfer
of any Mortgaged Property that secures, or controlling interests in any
Mortgagor under, a Cross-Collateralized Set unless the Master Servicer or
Special Servicer, as applicable, shall have obtained written confirmation from
each Rating Agency that such action shall not result in a qualification (if
applicable), downgrade or withdrawal of the rating then assigned by such Rating
Agency to any Class of Certificates or Companion Loan Securities (if
applicable).
(vii) In the event that the Master Servicer or Special Servicer
intends or is required, in accordance with the preceding clauses, by the
loan documents or applicable law, to permit the transfer of any Mortgaged
Property, the Master Servicer or the Special Servicer, as the case may
be, may, if consistent with the Servicing Standard, enter into a
substitution of liability agreement, pursuant to which the original
Mortgagor and any original guarantors are released from liability, and
the transferee and any new guarantors are substituted therefor and become
liable under the Mortgage Note and any related guaranties and, in
connection therewith, may require from the related Mortgagor a reasonable
and customary fee for the additional services performed by it, together
with reimbursement for any related costs and expenses incurred by it. In
addition, the Master Servicer or the Special Servicer, as the case may
be, if consistent with the Servicing Standard, shall require as a
condition of its approval that the related Mortgagor pay all costs
associated with such transfer. The Master Servicer or the Special
Servicer, as the case may be, shall promptly notify the Trustee in
writing of any such agreement and forward the original thereof to the
Trustee for inclusion in the related Mortgage File.
(b) In connection with any permitted assumption of any Serviced
Loan or waiver of a "due-on-sale" or "due-on-encumbrance" clause thereunder, the
Master Servicer (in the case of a Performing Serviced Loan) or the Special
Servicer (in the case of a Specially Serviced Loan) shall prepare all documents
necessary and appropriate for such purposes and shall coordinate with the
related Mortgagor for the due execution and delivery of such documents.
(c) If the Master Servicer or the Special Servicer collects an
assumption fee or an assumption application fee in connection with any transfer
or proposed transfer of any interest in a Mortgagor or a Mortgaged Property,
then the Master Servicer or the Special Servicer, as applicable, will apply that
fee to cover the costs and expenses associated with that transfer or proposed
transfer that are not otherwise paid by the related Mortgagor and that would
otherwise be payable or reimbursable out of the Trust Fund, including any Rating
Agency fees and expenses. Any remaining portion of such assumption fee (such
remaining portion, a "Net Assumption Fee") or of such assumption application fee
(such remaining portion, a "Net Assumption Application Fee") will be applied as
additional compensation to the Master Servicer or the Special Servicer in
accordance with Section 3.11.
Section 3.09 Realization Upon Defaulted Serviced Loans.
(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), and 3.09(d), exercise reasonable efforts, consistent with the Servicing
Standard, to foreclose upon or otherwise comparably convert the ownership of
properties and other collateral securing such of the Serviced Loans as come into
and continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments, including pursuant to Section 3.20. In
connection with the foregoing, in the event of a default under any Serviced Loan
or Cross-Collateralized Set that is secured by real properties located in
multiple states, and such states include California or another state with a
statute, rule or regulation comparable to California's "one action rule", then
the Special Servicer shall consult Independent counsel regarding the order and
manner in which the Special Servicer should foreclose upon or comparably proceed
against such properties. The reasonable costs of such consultation shall be paid
by, and reimbursable to, the Master Servicer as a Servicing Advance. In
addition, all other costs and expenses incurred in any foreclosure sale or
similar proceeding shall be paid by, and reimbursable to, the Special Servicer
as a Servicing Advance. Nothing contained in this Section 3.09 shall be
construed so as to require the Special Servicer, on behalf of the Trust, to make
a bid on any Mortgaged Property at a foreclosure sale or similar proceeding that
is in excess of the fair market value of such property, as determined by such
Special Servicer taking into account the factors described in Section 3.18 and
the results of any Appraisal obtained pursuant to the following sentence or
otherwise, all such cash bids to be made in a manner consistent with the
Servicing Standard. If and when the Special Servicer deems it necessary in
accordance with the Servicing Standard for purposes of establishing the fair
market value of any Mortgaged Property securing a Defaulted Serviced Loan,
whether for purposes of bidding at foreclosure or otherwise, the Special
Servicer is authorized to have an Appraisal completed with respect to such
property (the cost of which appraisal shall be covered by, and be reimbursable
as, a Servicing Advance).
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Trust (and in the case of a Mortgaged Property securing a Whole Loan, on behalf
of the related Companion Loan Holder) under such circumstances, in such manner
or pursuant to such terms as would (i) cause such Mortgaged Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code (unless the portion of such REO Property that is not treated as
"foreclosure property" and that is held by REMIC I at any given time constitutes
not more than a de minimis amount of the assets of such REMIC within the meaning
of Treasury Regulations Sections 1.860D-1(b)(3)(i) and (ii)), or (ii) except as
permitted by Section 3.17(a), subject the Trust (and in the case of a Mortgaged
Property securing any Serviced Whole Loan, the related Companion Loan Holder) to
the imposition of any federal income or prohibited transaction taxes under the
Code. Subject to the foregoing, however, a Mortgaged Property may be acquired
through a single member limited liability company. In addition, except as
permitted under Section 3.17, the Special Servicer shall not acquire any
personal property on behalf of the Trust pursuant to this Section 3.09 (with the
exception of cash or cash equivalents pledged as collateral for a Serviced Loan)
unless either:
(i) such personal property is incident to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of
Counsel (the cost of which shall be covered by, and reimbursable as, a
Servicing Advance) to the effect that the holding of such personal
property as part of the Trust Fund will not cause either REMIC I or REMIC
II to fail to qualify as a REMIC at any time that any Certificate is
outstanding or, subject to Section 3.17, cause the imposition of a tax on
the Trust under the REMIC Provisions.
(c) Notwithstanding the foregoing provisions of this Section
3.09, neither the Master Servicer nor the Special Servicer shall, on behalf of
the Trust (and in the case of a Mortgaged Property securing a Serviced Whole
Loan, on behalf of the related Companion Loan Holder), obtain title to a
Mortgaged Property by foreclosure, deed-in-lieu of foreclosure or otherwise, or
take any other action with respect to any Mortgaged Property, if, as a result of
any such action, the Trustee, on behalf of the Certificateholders (and in the
case of a Mortgaged Property securing a Serviced Whole Loan, on behalf of the
related Companion Loan Holder), could, in the reasonable, good faith judgment of
the Special Servicer, exercised in accordance with the Servicing Standard, be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property within the meaning of CERCLA or
any comparable law, unless:
(i) the Special Servicer has previously determined in accordance
with the Servicing Standard, based on a Phase I Environmental Assessment
(and any additional environmental testing that the Special Servicer deems
necessary and prudent) of such Mortgaged Property conducted by an
Independent Person who regularly conducts Phase I Environmental
Assessments and performed during the 12-month period preceding any such
acquisition of title or other action, that the Mortgaged Property is in
compliance with applicable environmental laws and regulations and there
are no circumstances or conditions present at the Mortgaged Property
relating to the use, management or disposal of Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any applicable environmental laws and
regulations; or
(ii) in the event that the determination described in the
immediately preceding clause (c)(i) cannot be made, the Special Servicer
has previously determined in accordance with the Servicing Standard, on
the same basis as described in the immediately preceding clause (c)(i),
that it would maximize the recovery to the Certificateholders (or if a
Serviced Whole Loan is affected, to the Certificateholders and the
related Companion Loan Holder) (as a collective whole and, in the case of
a Serviced Whole Loan that is an A/B Whole Loan, taking into account the
subordination of the related Companion Loan), on a net present value
basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be performed at the related Net
Mortgage Rate) to acquire title to or possession of the Mortgaged
Property and to take such remedial, corrective and/or other further
actions as are necessary to bring the Mortgaged Property into compliance
with applicable environmental laws and regulations and to appropriately
address any of the circumstances and conditions referred to in the
immediately preceding clause (c)(i).
Any such determination by the Special Servicer contemplated by
clause (i) or clause (ii) of the preceding paragraph shall be evidenced by an
Officer's Certificate to such effect delivered to the Trustee, the Master
Servicer, the Directing Certificateholder, the related Companion Loan Holder (if
a Whole Loan is involved) and the Controlling Holder (if an A/B Whole Loan is
involved), specifying all of the bases for such determination, such Officer's
Certificate to be accompanied by all related environmental reports. The cost of
such Phase I Environmental Assessment and any such additional environmental
testing shall be advanced by the Master Servicer at the direction of the Special
Servicer given in accordance with the Servicing Standard; provided, however, the
Master Servicer shall not be obligated in connection therewith to advance any
funds that, if so advanced, would constitute a Nonrecoverable Servicing Advance.
Amounts so advanced shall be subject to reimbursement as Servicing Advances in
accordance with Section 3.05(a). The cost of any remedial, corrective or other
further action contemplated by clause (ii) of the preceding paragraph shall be
payable out of the Certificate Account or, if a Serviced Whole Loan is involved,
out of the related Serviced Whole Loan Custodial Account, pursuant to Section
3.05.
(d) If neither of the conditions set forth in clauses (i) and
(ii) of the first paragraph of Section 3.09(c) has been satisfied with respect
to any Mortgaged Property securing a Defaulted Serviced Loan, the Special
Servicer shall take such action as is in accordance with the Servicing Standard
(other than proceeding against the Mortgaged Property) and, at such time as it
deems appropriate, may, on behalf of the Trust, and, if a Serviced Whole Loan is
involved, the related Companion Loan Holder (as a collective whole and, in the
case of a Serviced Whole Loan that is an A/B Whole Loan, taking into account the
subordination of the related Companion Loan), release all or a portion of such
Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall report to the Trustee, the Master
Servicer, the related Companion Loan Holder (if a Serviced Whole Loan is
involved), the related Controlling Holder (if an A/B Whole Loan is involved) and
the Directing Certificateholder monthly in writing as to any actions taken by
the Special Servicer with respect to any Mortgaged Property as to which neither
of the conditions set forth in clauses (i) and (ii) of the first paragraph of
Section 3.09(c) has been satisfied, in each case until the earliest to occur of
satisfaction of either of such conditions, release of the lien of the related
Mortgage on such Mortgaged Property and the related Serviced Loan's becoming a
Corrected Serviced Loan.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the subject Serviced Loan permit such an action and shall, in
accordance with the Servicing Standard, seek such deficiency judgment if it
deems advisable.
(g) Annually in each January, commencing in January 2008, the
Master Servicer (with information provided by the Special Servicer) shall file
with the IRS, on a timely basis, the information returns with respect to the
reports of foreclosures and abandonments and reports relating to any
cancellation of indebtedness income with respect to any Specially Serviced Loans
and REO Properties (other than REO Properties related to any Non-Serviced Loan)
required by Sections 6050H (as applicable), 6050J and 6050P of the Code.
Contemporaneously, the Master Servicer shall deliver to the Trustee an Officer's
Certificate stating that all such information returns relating to Specially
Serviced Loans and REO Properties that were required to be filed during the
prior 12 months have been properly completed and timely provided to the IRS. The
Master Servicer shall prepare and file the information returns with respect to
the receipt of any mortgage interest received in a trade or business from
individuals with respect to any Serviced Loan as required by Section 6050H of
the Code. All information returns shall be in form and substance sufficient to
meet the reporting requirements imposed by the relevant sections of the Code.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Serviced Loan or REO Property (other than any
REO Property related to any Non-Serviced Loan), it shall promptly notify the
Trustee, the Master Servicer, the Directing Certificateholder, the related
Companion Loan Holder (if a Serviced Whole Loan is involved) and the Controlling
Holder (if an A/B Whole Loan is involved). The Special Servicer shall maintain
accurate records, prepared by a Servicing Officer, of each such Final Recovery
Determination (if any) and the basis thereof. Each such Final Recovery
Determination (if any) shall be evidenced by an Officer's Certificate delivered
to the Trustee and the Master Servicer no later than the third Business Day
following such Final Recovery Determination.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Serviced Loan, or the receipt
by the Master Servicer of a notification that payment in full shall be escrowed
in a manner customary for such purposes, the Master Servicer shall immediately
notify the Trustee and the related Companion Loan Holder (if a Serviced Whole
Loan is involved), and request delivery of the related Mortgage File by
delivering thereto a Request for Release in the form of Exhibit D that shall be
accompanied by the form of any release or discharge to be executed by the
Trustee. Any such Request for Release shall include a statement to the effect
that all amounts received or to be received in connection with such payment that
are required to be deposited into the Certificate Account pursuant to Section
3.04(a) have been or will be so deposited. Upon receipt of such notice and
request conforming in all material respects to the provisions hereof, the
Trustee shall promptly release, or cause any related Custodian to release, the
related Mortgage File to the Master Servicer or Special Servicer, as applicable.
If the Mortgage has been recorded in the name of MERS or its designee, the
Master Servicer shall take all necessary action to reflect the release of the
Mortgage on the records of MERS. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Certificate Account or if a Serviced Whole Loan is involved, the related
Serviced Whole Loan Custodial Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Serviced Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), then, upon
request of the Master Servicer or the Special Servicer and receipt therefrom of
a Request for Release in the form of Exhibit D attached hereto signed by a
Servicing Officer thereof, the Trustee shall release, or cause any related
Custodian to release, such Mortgage File (or portion thereof) to the Master
Servicer or the Special Servicer, as the case may be. Upon return of such
Mortgage File (or portion thereof) to the Trustee or the related Custodian, or
the delivery to the Trustee of a certificate of a Servicing Officer of the
Special Servicer stating that such Serviced Loan was liquidated and that all
amounts received or to be received in connection with such liquidation that are
required to be deposited into the Certificate Account pursuant to Section
3.04(a), or, if a Serviced Whole Loan is involved, into the related Serviced
Whole Loan Custodial Account pursuant to Section 3.04(e), have been or will be
so deposited, or that such Serviced Loan has become a REO Property, the Request
for Release shall be released by the Trustee to the Master Servicer or the
Special Servicer, as applicable.
(c) Within five Business Days of the Special Servicer's request
therefor (or, if the Special Servicer notifies the Trustee of an exigency,
within such shorter period as is reasonable under the circumstances), the
Trustee shall execute and deliver to the Special Servicer, in the form supplied
to the Trustee, as applicable, by the Special Servicer, any court pleadings,
requests for trustee's sale or other documents reasonably necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or
rights provided by the Mortgage Note or Mortgage or otherwise available at law
or in equity or to defend any legal action or counterclaim filed against the
Trust, or if a Serviced Whole Loan is involved, against the related Companion
Loan Holder, the Master Servicer or the Special Servicer; provided that the
Trustee may alternatively execute and deliver to the Special Servicer, in the
form supplied to the Trustee by the Special Servicer, a limited power of
attorney, subject to the provisions of Section 3.01(c), issued in favor of the
Special Servicer and empowering the Special Servicer to execute and deliver any
or all of such pleadings or documents on behalf of the Trustee (however, the
Trustee shall not be liable for any misuse of such power of attorney by such
Special Servicer). Together with such pleadings or documents (or such power of
attorney empowering the Special Servicer to execute the same on behalf of the
Trustee), the Special Servicer shall deliver to the Trustee an Officer's
Certificate requesting that such pleadings or documents (or such power of
attorney empowering the Special Servicer to execute the same on behalf of the
Trustee) be executed by the Trustee and certifying as to the reason such
pleadings or documents are required and that the execution and delivery thereof
by the Trustee (or by the Special Servicer on behalf of the Trustee) will not
invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee's sale.
If a Serviced Whole Loan is involved, such documents and pleadings shall also be
delivered by the Special Servicer to the related Companion Loan Holder.
(d) Each of the Master Servicer and the Special Servicer, as
applicable, is authorized for the benefit of the Certificateholders and, if a
Serviced Whole Loan is involved, the related Companion Loan Holder, to direct,
manage, prosecute and/or defend any and all claims and litigation relating to
(a) the enforcement of the obligations of the Borrower or guarantor under any
loan documents and (b) any action brought by the Borrower against the Trust
Fund. Such enforcement shall be carried out in accordance with the terms of this
Agreement, including, without limitation, the Servicing Standard; it being
expressly understood that (i) the Master Servicer shall not be liable for such
enforcement by the Special Servicer and (ii) the Special Servicer shall not be
liable for such enforcement by the Master Servicer. If from time to time,
pursuant to the terms of the ChampionsGate Hotel Intercreditor Agreement and the
ChampionsGate Hotel Pooling Agreement, and as appropriate for enforcing the
terms of the ChampionsGate Hotel Pari Passu Mortgage Loan, the ChampionsGate
Hotel Master Servicer requests delivery to it of the original Mortgage Note for
the ChampionsGate Hotel Pari Passu Mortgage Loan, then the Trustee shall release
or cause the release of such original Mortgage Note to the ChampionsGate Hotel
Master Servicer or its designee. If from time to time, pursuant to the terms of
the One Park Avenue Intercreditor Agreement and the One Park Avenue Pooling
Agreement, and as appropriate for enforcing the terms of the One Park Avenue
Pari Passu Mortgage Loan, the One Park Avenue Master Servicer requests delivery
to it of the original Mortgage Note for the One Park Avenue Pari Passu Mortgage
Loan, then the Trustee shall release or cause the release of such original
Mortgage Note to the One Park Avenue Master Servicer or its designee.
Notwithstanding the foregoing, in the event (a) of any action,
suit, litigation or proceeding naming the Trustee in its individual capacity, or
in the event that any judgment is rendered against the Trustee in its individual
capacity, the Trustee, upon prior written notice to the Master Servicer or the
Special Servicer, as applicable, may retain counsel and appear in any such
proceeding on its own behalf in order to protect and represent its interests;
provided that the Master Servicer or the Special Servicer, as applicable, shall
retain the right to manage and direct any such action, suit, litigation or
proceeding, (b) of any action, suit, litigation or proceeding, other than an
action, suit, litigation or proceeding relating to the enforcement of the
obligations under the related loan documents, neither the Master Servicer nor
the Special Servicer shall, without the prior written consent of the Trustee,
(i) initiate any action, suit, litigation or proceeding in the name of the
Trustee, whether in such capacity or individually, (ii) engage counsel to
represent the Trustee or (iii) prepare, execute or deliver any government
filings, forms, permits, registrations or other documents or take any other
similar action with the intent to cause, and that actually causes, the Trustee
to be registered to do business in any state; and (c) that any court finds that
the Trustee is a necessary party in respect of any action, suit, litigation or
proceeding relating to or arising from this Agreement or any Mortgage Loan, the
Trustee shall have the right to retain counsel and appear in any such proceeding
on its own behalf in order to protect and represent its interest, whether as
Trustee or individually; provided that the Master Servicer or the Special
Servicer, as applicable, shall retain the right to manage and direct any such
action, suit, litigation or proceeding.
Section 3.11 Servicing Compensation; Interest on Servicing
Advances; Payment of Certain Expenses; Obligations of the Trustee Regarding
Back-up Servicing Advances.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Loan (including each Specially Serviced Loan) and each related REO Loan. As
to each such Loan and REO Loan, for each calendar month (commencing with August
2007) or any applicable portion thereof, the Master Servicing Fee shall accrue
at the related Master Servicing Fee Rate on the same principal amount, as
interest accrues from time to time during such calendar month (or portion
thereof) on such Loan or is deemed to accrue from time to time during such
calendar month (or portion thereof) on such REO Loan, as the case may be, and
shall be calculated on the same Interest Accrual Basis as is applicable for such
Loan or REO Loan, as the case may be. The Master Servicing Fee with respect to
any Loan or REO Loan shall cease to accrue if a Liquidation Event (or with
respect to a Non-Serviced Loan, a similar event occurs under the related
Non-Serviced Loan Pooling Agreement) occurs in respect thereof. Master Servicing
Fees earned with respect to any such Loan or REO Loan shall be payable monthly
from payments of interest on such Loan or REO Revenues allocable as interest on
such REO Loan, as the case may be. The Master Servicer shall be entitled to
recover unpaid Master Servicing Fees in respect of any Loan or REO Loan out of
the portion of any related Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds allocable as interest on such Loan or REO Loan, as the case
may be. The right to receive the Master Servicing Fee may not be transferred in
whole or in part except in connection with the transfer of all of the Master
Servicer's responsibilities and obligations under this Agreement and except as
otherwise expressly provided in the following paragraph. For the avoidance of
doubt, the Master Servicer will not be entitled to any Master Servicing Fee with
respect to any Companion Loan related to a Mortgage Loan sold by HRECC.
(b) The Master Servicer shall be entitled to receive the
following items as additional servicing compensation, which shall be paid prior
to remittance of such amounts, if any, which are required to be paid in the case
of a Serviced Whole Loan to any Companion Loan Holder under any Intercreditor
Agreement (the following items, collectively, "Additional Master Servicing
Compensation"):
(i) any and all Net Default Charges, Net Assumption Application
Fees, Net Modification Application Fees and earnout fees collected with
respect to a Performing Serviced Loan;
(ii) 50% of any and all Net Assumption Fees actually paid by a
Mortgagor with respect to a Performing Serviced Loan;
(iii) 50% of any and all Net Modification Fees, extension fees,
consent fees and waiver fees actually paid by a Mortgagor with respect to
a Performing Serviced Loan for which Special Servicer approval is
required;
(iv) any and all charges for beneficiary statements or demands,
amounts collected for checks returned for insufficient funds and other
loan processing fees actually paid by a Mortgagor with respect to a
Performing Serviced Loan and, in the case of checks returned for
insufficient funds, with respect to a Specially Serviced Loan;
(v) any and all Prepayment Interest Excess collected on the
Mortgage Loans (other than Non-Serviced Mortgage Loans);
(vi) interest or other income earned on deposits in the
Investment Accounts maintained by the Master Servicer, in accordance with
Section 3.06(b) (but only to the extent of the Net Investment Earnings,
if any, with respect to any such Investment Account for each Collection
Period and, further, in the case of a Servicing Account or Reserve
Account, only to the extent such interest or other income is not required
to be paid to any Mortgagor under applicable law or under the related
Mortgage); and
(vii) 50% of any and all substitution fees (net of any costs
incurred in connection with any substitution) collected on a Performing
Serviced Loan.
Notwithstanding the foregoing with respect to any 50% sharing of
fees referenced in this Section 3.11(b), the Master Servicer shall be entitled
to all such fees if with respect to the activity related to any such fee the
Master Servicer is not required to seek the consent and/or approval of the
Special Servicer pursuant to this Agreement.
To the extent that any of the amounts described in the preceding
paragraph are collected by the Special Servicer, the Special Servicer shall
promptly pay such amounts to the Master Servicer.
(c) As compensation for its activities hereunder, the Special Servicer shall be
entitled to receive monthly the Special Servicing Fee with respect to each
Specially Serviced Loan and each REO Loan for which it is responsible. As to
each Specially Serviced Loan and REO Loan, for any particular calendar month or
applicable portion thereof, the Special Servicing Fee shall accrue at the
Special Servicing Fee Rate on the same principal amount as interest accrues from
time to time during such calendar month (or portion thereof) on such Specially
Serviced Loan or is deemed to accrue from time to time during such calendar
month (or portion thereof) on such REO Loan, as the case may be, and shall be
calculated on the same Interest Accrual Basis as is applicable for such
Specially Serviced Loan or REO Loan, as the case may be. The Special Servicing
Fee with respect to any Specially Serviced Loan or REO Loan shall cease to
accrue as of the date a Liquidation Event occurs in respect thereof or, in the
case of a Specially Serviced Loan, as of the date it becomes a Corrected
Serviced Loan. Earned but unpaid Special Servicing Fees with respect to
Specially Serviced Loans and REO Loans shall be payable monthly out of general
collections on the Loans and any REO Properties on deposit in the Certificate
Account pursuant to Section 3.05(a); provided, however, if a Serviced Whole Loan
is involved, first out of funds on deposit in the related Serviced Whole Loan
Custodial Account pursuant to Section 3.05(f).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Serviced Loan. As to each Corrected Serviced Loan, the Workout Fee
shall be payable out of, and shall be calculated by application of the Workout
Fee Rate to, each payment of interest (other than Default Interest) and
principal received from the related Mortgagor on such Serviced Loan for so long
as it remains a Corrected Serviced Loan. The Workout Fee with respect to any
such Corrected Serviced Loan will cease to be payable if a new Servicing
Transfer Event occurs with respect thereto or if the related Mortgaged Property
becomes a REO Property; provided that a new Workout Fee would become payable if
and when the subject Serviced Loan again became a Corrected Serviced Loan. If
the Special Servicer is terminated, including pursuant to Section 3.23, or
resigns in accordance with Section 6.04, it shall retain the right to receive
any and all Workout Fees payable in respect of (i) any Serviced Loans serviced
by it that became Corrected Serviced Loans during the period that it acted as
Special Servicer and that were still Corrected Serviced Loans at the time of
such termination or resignation and (ii) any Specially Serviced Loans for which
such Special Servicer has resolved the circumstances and/or conditions causing
any such Serviced Loan to be a Specially Serviced Loan, but that had not as of
the time the Special Servicer was terminated become a Corrected Serviced Loan
solely because the related Mortgagor had not made three consecutive timely
Monthly Payments and that subsequently becomes a Corrected Serviced Loan as a
result of the related Mortgagor making such three consecutive timely monthly
payments (and the successor to the Special Servicer shall not be entitled to any
portion of such Workout Fees), in each case until the Workout Fee for any such
loan ceases to be payable in accordance with the preceding sentence; provided
that, in the case of any Specially Serviced Loan described in clause (ii) of
this sentence, the terminated Special Servicer shall immediately deliver the
related Servicing File to the Master Servicer, and the Master Servicer shall
(without further compensation) monitor that all conditions precedent to such
Serviced Loan's becoming a Corrected Serviced Loan are satisfied and, further,
shall immediately transfer such Servicing File to the new Special Servicer if
and when it becomes apparent to the Master Servicer that such conditions
precedent will not be satisfied.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Loan or REO Loan as to which it receives any full,
partial or discounted payoff from the related Mortgagor or any Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds. Notwithstanding the
foregoing and for the avoidance of doubt, no Liquidation Fee shall be payable in
connection with: (a) the purchase of a Defaulted Serviced Loan by the Majority
Certificateholder of the Controlling Class pursuant to any applicable purchase
right set forth in Section 3.18(c) or with respect to a purchase of a related
Defaulted Serviced Loan at its fair value as determined in Section 3.18, unless
such purchase is by an assignee of the Majority Certificateholder of the
Controlling Class or the Special Servicer, such assignee is not an affiliate of
the Majority Certificateholder of the Controlling Class or the Special Servicer,
such assignment is for no material consideration and such purchase occurs or
purchase right is exercised more than 90 days from the date that the Special
Servicer has initially determined the fair value of the related Mortgage Loan;
(b) the purchase of any Mortgage Loan by the related A/B Whole Loan Purchase
Option Holder (or its designee) or the holder of a subordinate note or a
Mezzanine Loan (or its designee) pursuant to a purchase option contained in the
related intercreditor agreement unless such purchase occurs or purchase right is
exercised more than 90 days from the date that the Special Servicer has
initially determined the fair value of the Mortgage Loan; (c) the purchase
option of the Majority Certificateholder of the Controlling Class, the Master
Servicer or the Special Servicer pursuant to Section 9.01; (d) the repurchase by
the related Mortgage Loan Seller of a Mortgage Loan so required to be
repurchased by it pursuant to Section 4 of the related Mortgage Loan Purchase
and Sale Agreement and Section 2.03 within the time frame set forth in the
Initial Resolution Period and/or the Resolution Extension Period (if
applicable), provided that such purchase occurs within 90 days after the date
that such Mortgage Loan Seller was first notified of its obligation to
repurchase such Loan; or (e) in connection with a Loss of Value Payment by the
related Mortgage Loan Seller.
As to each such Specially Serviced Loan or REO Loan, the
Liquidation Fee shall be payable out of, and shall be calculated by application
of the Liquidation Fee Rate to, any such full, partial or discounted payoff,
Condemnation Proceeds and/or Liquidation Proceeds received or collected in
respect thereof (other than any portion of such payment or proceeds that
represents Default Charges or a Prepayment Premium). The Liquidation Fee with
respect to any such Specially Serviced Loan will not be payable if such Serviced
Loan becomes a Corrected Serviced Loan.
The Special Servicer's right to receive any Special Servicing
Fee, Workout Fee and/or Liquidation Fee to which it is entitled may not be
transferred in whole or in part except in connection with the transfer of all of
the Special Servicer's responsibilities and obligations under this Agreement and
except as otherwise expressly provided herein.
(d) The Special Servicer shall be entitled to receive the
following items as additional special servicing compensation, which shall be
paid prior to remittance of such amounts, if any, which are required to be paid
to the related Companion Loan Holder in the case of a Serviced Whole Loan under
the related Intercreditor Agreement (the following items, collectively, the
"Additional Special Servicing Compensation"):
(i) any and all Net Default Charges collected with respect to a
Specially Serviced Loan or a REO Loan;
(ii) any and all Net Assumption Fees, Net Assumption Application
Fees, Net Modification Fees, Net Modification Application Fees, extension
fees, consent fees, waiver fees, earnout fees, substitution fees, late
payment charges and charges for beneficiary statements or demands that
are actually received on or with respect to a Specially Serviced Loan or
a REO Loan;
(iii) 50% of any and all Net Assumption Fees, modification fees,
extension fees, consent fees and waiver fees that are actually received
on or with respect to a Performing Serviced Loan;
(iv) interest or other income earned on deposits in the Special
Servicer's applicable REO Account in accordance with Section 3.06(b) (but
only to the extent of the Net Investment Earnings, if any, with respect
to such REO Account for each Collection Period); and
(v) 50% of any and all substitution fees (net of any costs
incurred in connection with any substitution) collected on a Performing
Serviced Loan.
Notwithstanding the foregoing with respect to the fees referenced
in the immediately preceding clauses (iii) and (v), the Special Servicer shall
not be entitled to such fees unless the Master Servicer was required to seek the
approval or consent of the Special Servicer pursuant to this Agreement with
respect to any consent, extension, modification or waiver related to any such
fee.
To the extent that any of the amounts described in the preceding
paragraph are collected by the Master Servicer with respect to a Specially
Serviced Loan, the Master Servicer shall promptly pay such amounts to the
Special Servicer and shall not be required to deposit such amounts in the
Certificate Account or if a Serviced Whole Loan is involved, in the related
Serviced Whole Loan Custodial Account.
(e) The Master Servicer and the Special Servicer shall each be
required (subject to Section 3.11(h)) to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder (including
payment of any amounts due and owing to any Sub-Servicers retained by it
(including any termination fees) and the premiums for any blanket policy or the
standby fee or similar premium, if any, for any master force placed policy
obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if
and to the extent such expenses are not payable directly out of the Certificate
Account, the related Serviced Whole Loan Custodial Account, the Reserve Accounts
or a REO Account, and neither the Master Servicer nor the Special Servicer shall
be entitled to reimbursement for any such expense incurred by it except as
expressly provided in this Agreement. If the Master Servicer is required to make
any Servicing Advance hereunder at the direction of the Special Servicer in
accordance with Section 3.03(c), Section 3.19 or otherwise, the Special Servicer
shall promptly provide the Master Servicer with such documentation regarding the
subject Servicing Advance as the Master Servicer may reasonably request.
(f) If the Master Servicer is required under this Agreement to
make a Servicing Advance, but does not do so within ten days after such Advance
is required to be made, the Trustee shall, if it has actual knowledge of such
failure on the part of the Master Servicer, give notice of such failure to the
Master Servicer. If such Advance is not made by the Master Servicer within three
Business Days after such notice, then (subject to Section 3.11(h)) the Trustee
shall make such Advance. Any failure by the Master Servicer to make a Servicing
Advance it is required to make hereunder shall constitute an Event of Default by
the Master Servicer, subject to and as provided in Section 7.01(a).
(g) The Master Servicer, the Special Servicer and the Trustee
shall each be entitled to receive interest at the Reimbursement Rate in effect
from time to time, accrued on the amount of each Advance made thereby (with its
own funds), for so long as such Advance is outstanding. Such interest with
respect to any Advances shall be payable: (i) first, in accordance with Sections
3.05 and 3.27, out of any Default Charges subsequently collected on or in
respect of the Mortgage Pool or Companion Loan related to a Serviced Whole Loan,
if applicable; and (ii) then, after such Advance is reimbursed, but only if and
to the extent that such Default Charges are insufficient to cover such Advance
Interest, out of general collections on the Mortgage Loans and REO Properties on
deposit in the Certificate Account or, if a Serviced Whole Loan or related REO
Property is involved, on deposit in the related Serviced Whole Loan Custodial
Account. The Master Servicer shall reimburse itself, the Special Servicer or the
Trustee, as appropriate, for any Advance made by any such Person as soon as
practicable after funds available for such purpose are deposited into the
Certificate Account or, if a Serviced Whole Loan is involved, are deposited into
the related Serviced Whole Loan Custodial Account. Notwithstanding anything
herein to the contrary, no interest shall be payable with respect to any P&I
Advance of a payment due on a Serviced Loan during the applicable grace period
and interest shall cease to accrue on any Workout-Delayed Reimbursement Amount
to the extent such amount has been reimbursed from principal collections in
accordance with Section 3.05.
(h) Notwithstanding anything to the contrary set forth herein,
none of the Master Servicer, the Special Servicer or the Trustee shall be
required to make any Servicing Advance that it determines in its reasonable,
good faith judgment would constitute a Nonrecoverable Servicing Advance;
provided, however, the Special Servicer may, at its option, in consultation with
the Directing Certificateholder, make a determination in accordance with the
Servicing Standard, that any Servicing Advance previously made or proposed to be
made is a Nonrecoverable Servicing Advance and shall deliver to the Master
Servicer and the Trustee notice of such determination. Any such determination
shall be conclusive and binding on the Master Servicer and the Trustee. The
determination by any Person with an obligation hereunder to make Servicing
Advances (or a determination by the Special Servicer with respect to such
Person) that it has made a Nonrecoverable Servicing Advance or that any proposed
Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance,
shall be made by such Person in its reasonable, good faith judgment and shall be
evidenced by an Officer's Certificate delivered promptly to the Depositor and
the Trustee (unless it is the Person making such determination), and the Trustee
shall provide a copy thereof to the Directing Certificateholder, the related
Companion Loan Holder (if a Serviced Whole Loan is involved and the Trustee has
knowledge of such Companion Loan Holder), setting forth the basis for such
determination, accompanied by a copy of an Appraisal of the related Mortgaged
Property or REO Property performed within the 12 months preceding such
determination, and further accompanied by any other information, including
engineers' reports, environmental surveys or similar reports, that such Person
may have obtained and that support such determination. Notwithstanding the
foregoing and the Trustee (i) shall conclusively rely on and be bound by any
determination of nonrecoverability that may have been made by the Special
Servicer and (ii) shall be entitled to conclusively rely on any determination of
nonrecoverability that may have been made by the Master Servicer with respect to
a particular Servicing Advance, and the Master Servicer and the Special Servicer
shall each be entitled to conclusively rely on any determination of
nonrecoverability that may have been made by the other such party with respect
to a particular Servicing Advance. A copy of any such Officer's Certificate (and
accompanying information) of the Master Servicer shall also be delivered
promptly to the Special Servicer, a copy of any such Officer's Certificate (and
accompanying information) of the Special Servicer shall also be promptly
delivered to the Master Servicer, and a copy of any such Officer's Certificates
(and accompanying information) of the Trustee shall also be promptly delivered
to the Master Servicer and the Special Servicer. The Master Servicer shall
consider Unliquidated Advances in respect of prior Servicing Advances for
purposes of nonrecoverability determinations as if such Unliquidated Advances
were unreimbursed Servicing Advances.
(i) Notwithstanding anything to the contrary set forth herein,
the Master Servicer may (and, at the direction of the Special Servicer if a
Specially Serviced Loan or a REO Property is involved, shall) pay directly out
of the Certificate Account or, if a Serviced Whole Loan is involved, the related
Serviced Whole Loan Custodial Account, in accordance with Section 3.05, any
servicing expense that, if paid by the Master Servicer or the Special Servicer,
would constitute a Nonrecoverable Servicing Advance; provided that the Master
Servicer (or the Special Servicer, if a Specially Serviced Loan or a REO
Property is involved) has determined in accordance with the Servicing Standard
that making such payment is in the best interests of the Certificateholders, or
if a Serviced Whole Loan is affected, the interests of the Certificateholders
and the related Companion Loan Holder (as a collective whole and, in the case of
a Serviced Whole Loan that is an A/B Whole Loan, taking into account the
subordination of the related Companion Loan), as evidenced by an Officer's
Certificate delivered promptly to the Depositor and the Trustee, which shall
provide a copy thereof to the Directing Certificateholder and the related
Companion Loan Holder (if applicable) (if a Serviced Whole Loan is involved and
the Trustee has knowledge of such Companion Loan Holder), setting forth the
basis for such determination and accompanied by any information that such Person
may have obtained that supports such determination. A copy of any such Officer's
Certificate (and accompanying information) of the Master Servicer shall also be
delivered promptly to the Special Servicer, and a copy of any such Officer's
Certificate (and accompanying information) of the Special Servicer shall also be
promptly delivered to the Master Servicer.
Section 3.12 Inspections; Collection of Financial Statements.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable (but in any
event not later than 60 days) after the related Serviced Loan becomes a
Specially Serviced Loan (and, in cases where the related Serviced Loan has
become a Specially Serviced Loan, the Special Servicer shall continue to perform
or cause to be performed a physical inspection of the subject Mortgaged Property
at least once per calendar year thereafter for so long as the related Serviced
Loan remains a Specially Serviced Loan or if such Mortgaged Property becomes a
REO Property); provided that the Special Servicer shall be entitled to
reimbursement of the reasonable and direct out-of-pocket expenses incurred by it
in connection with each such inspection as Servicing Advances. Beginning in
2008, the Master Servicer shall at its expense perform or cause to be performed
an inspection of each Mortgaged Property (other than a Mortgaged Property
related to any Non-Serviced Loan) at least once per calendar year (or, in the
case of each Loan with an unpaid principal balance of under $2,000,000, once
every two years), if the Special Servicer has not already done so during that
period pursuant to the preceding sentence. The costs of each such inspection
incurred by the Special Servicer shall be reimbursable first from Default
Charges and then, to the extent such Default Charges are insufficient, out of
general collections. To the extent such costs are to be reimbursed from general
collections, such costs shall constitute an Additional Trust Fund Expense. The
Master Servicer and the Special Servicer shall each prepare a written report of
each such inspection performed by it or on its behalf that sets forth in detail
the condition of the Mortgaged Property and that specifies the occurrence or
existence of: (i) any sale, transfer or abandonment of the Mortgaged Property of
which the Master Servicer or the Special Servicer, as the case may be, is aware,
(ii) any change in the condition or occupancy of the Mortgaged Property that the
Master Servicer or the Special Servicer, as the case may be, in accordance with
the Servicing Standard, is aware of and considers material, or (iii) any waste
committed on the Mortgaged Property that the Master Servicer or the Special
Servicer, as the case may be, in accordance with the Servicing Standard, is
aware of and considers material. Upon request of the Trustee, the Master
Servicer and the Special Servicer shall each deliver to the Trustee a copy (or
image in suitable electronic media) of each such written report prepared by it,
in each case within 30 days following the request (or, if later, within 30 days
following the later of completion of the related inspection if the inspection is
performed by the Master Servicer or the Special Servicer, as the case may be, or
receipt of the related inspection report if the inspection is performed by a
third party). Upon request, the Trustee shall request from the Master Servicer
or the Special Servicer, as the case may be, and, to the extent such items have
been delivered to the Trustee by the Master Servicer or the Special Servicer, as
the case may be, deliver, upon request, to each of the Depositor, the related
Mortgage Loan Seller, the Directing Certificateholder, the related Companion
Loan Holder or any Controlling Holder, as applicable (if a Serviced Whole Loan
is involved and the Trustee has knowledge of such Companion Loan Holder or such
Controlling Holder, as applicable), any Certificateholder or, if the Trustee has
in accordance with Section 5.06(b) confirmed the Ownership Interest in
Certificates held thereby, any Certificate Owner, a copy (or image in suitable
electronic media) of each such written report prepared by the Master Servicer or
the Special Servicer.
(b) Commencing with respect to the calendar quarter ended
September 2007, the Special Servicer, in the case of any Specially Serviced
Loan, and the Master Servicer, in the case of each Performing Serviced Loan,
shall make reasonable efforts to collect promptly (and, in any event, shall
attempt to collect within 45 days following the end of the subject quarter or
120 days following the end of the subject year) from each related Mortgagor
quarterly and annual operating statements, budgets and rent rolls of the related
Mortgaged Property, and quarterly and annual financial statements of such
Mortgagor, to the extent required pursuant to the terms of the related Mortgage.
In addition, the Special Servicer shall cause quarterly and annual operating
statements, budgets and rent rolls to be regularly prepared in respect of each
REO Property (other than any REO Property related to any Non-Serviced Mortgage
Loan) and shall collect all such items promptly following their preparation. The
Special Servicer shall deliver copies (or images in suitable electronic media)
of all of the foregoing items so collected or obtained by it to the Master
Servicer within 30 days of its receipt thereof.
Within 60 days after receipt by the Master Servicer from the
related Mortgagors or otherwise, as to any Performing Serviced Loan, and within
45 days after receipt by the Special Servicer or otherwise, as to any Specially
Serviced Loan or REO Property (other than REO Property related to any
Non-Serviced Loan), of any annual operating statements or rent rolls with
respect to any Mortgaged Property (other than the Mortgaged Property related to
any Non-Serviced Loan) or REO Property (other than any REO Property related to
any Non-Serviced Loan), the Master Servicer (or the Special Servicer, with
respect to any REO Property) shall, based upon such operating statements or rent
rolls, prepare (or, if previously prepared, update) the related CMSA Operating
Statement Analysis Report commencing March 31, 2008. The Master Servicer also
shall deliver to the Directing Certificateholder (in hard copy or electronic
format, as requested) copies of all such rent rolls and operating statements.
The Special Servicer shall remit a copy of each CMSA Operating Statement
Analysis Report prepared or updated by it (within ten days following the initial
preparation and each update thereof), together with, if so requested, the
underlying operating statements and rent rolls, to the Master Servicer in a
format reasonably acceptable to the Master Servicer and the Trustee. All CMSA
Operating Statement Analysis Reports relating to Performing Serviced Loans shall
be maintained by the Master Servicer, and all CMSA Operating Statement Analysis
Reports relating to any Specially Serviced Loan and REO Property shall be
maintained by the Special Servicer. The Trustee shall, upon request, request
from the Master Servicer (if necessary) and, to the extent such items have been
delivered to the Trustee by the Master Servicer, deliver to the Directing
Certificateholder, the related Companion Loan Holder (if a Serviced Whole Loan
is involved and the Trustee has knowledge of such Companion Loan Holder), any
Certificateholder or, if the Trustee has in accordance with Section 5.06
confirmed the Ownership Interest in the Certificates held thereby, any
Certificate Owner, a copy of such CMSA Operating Statement Analysis (or update
thereof) and, if requested, the related operating statement or rent rolls.
Within 60 days (or, in the case of items received from the
Special Servicer with respect to Specially Serviced Loans and REO Properties, 30
days) after receipt by the Master Servicer of any quarterly or annual operating
statements with respect to any Mortgaged Property (other than with respect to
the Mortgaged Property related to any Non-Serviced Loan) or REO Property (other
than any REO Property related to any Non-Serviced Loan), the Master Servicer (or
the Special Servicer, with respect to any REO Property) shall prepare or update
and forward to the Trustee (upon request), the Master Servicer (with respect to
CMSA NOI Adjustment Worksheets prepared by the Special Servicer), the Special
Servicer (with respect to CMSA NOI Adjustment Worksheets prepared by the Master
Servicer), the Directing Certificateholder (if the Directing Certificateholder
and the Special Servicer are not the same entity), the related Companion Loan
Holder, upon its request (if the related Serviced Whole Loan is involved), a
CMSA NOI Adjustment Worksheet for such Mortgaged Property or REO Property,
together with, if so requested, the related operating statements (in an
electronic format reasonably acceptable to the Trustee and the Special Servicer)
commencing March 31, 2008.
If, with respect to any Serviced Loan (other than a Specially
Serviced Loan), the Special Servicer has any questions for the related Mortgagor
based upon the information received by the Special Servicer pursuant to Section
3.12(a) or Section 3.12(b), the Master Servicer shall, in this regard and
without otherwise changing or modifying its duties hereunder, reasonably
cooperate with the Special Servicer in assisting the Special Servicer to contact
and solicit information from such Mortgagor.
(c) Not later than 2:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Master Servicer, the
Directing Certificateholder and the related Companion Loan Holder (if a Serviced
Whole Loan is involved), the following reports (or data files relating to
reports of the Master Servicer) with respect to the Specially Serviced Loans and
any REO Properties for which it is responsible, providing the required
information as of such Determination Date: (i) a CMSA Property File; (ii) a CMSA
Special Servicer Loan File (which, in each case, if applicable, will identify
each Serviced Loan by loan number and property name); and (iii) the CMSA REO
Status Report. In addition, the Special Servicer shall from time to time provide
the Master Servicer with such information in the Special Servicer's possession
regarding the Specially Serviced Loans and REO Properties as may be requested by
the Master Servicer and is reasonably necessary for the Master Servicer to
prepare each report and any supplemental information required to be provided by
the Master Servicer to the Trustee.
(d) Beginning in October 2007, not later than 12:00 noon (New
York City time) on the third Business Day following each Determination Date (or
with respect to the CMSA Loan Periodic Update File, not later than 2:00 p.m.
(New York City time) on the second Business Day following each Determination
Date beginning in August 2007), the Master Servicer shall prepare (if and to the
extent necessary) and deliver or cause to be delivered to the Trustee, the
Special Servicer, the Directing Certificateholder (if the Directing
Certificateholder is not the same entity as the Special Servicer) and the
related Companion Loan Holder (if the related Serviced Whole Loan is involved),
in a computer-readable medium downloadable by the Trustee, the Special Servicer,
the Directing Certificateholder and the related Companion Loan Holder (if a
Serviced Whole Loan is involved) (or, in the case of the Trustee, at the
Trustee's written request, in a form reasonably acceptable to the recipient,
including on a loan-by-loan basis), each of the files and reports listed in the
definition of "CMSA Investor Reporting Package" (other than the CMSA Bond Level
File and the CMSA Collateral Summary File, which are prepared by the Trustee),
providing the most recent information with respect to the Mortgage Pool as of
the related Determination Date (and which, in each case, if applicable, will
identify each subject Loan by loan number and property name).
The Master Servicer may, but is not required to, make any of the
reports or files comprising the CMSA Investor Reporting Package (other than the
CMSA Bond Level File and the CMSA Collateral Summary File, which are prepared by
the Trustee) available each month on the Master Servicer's website; provided,
that the Master Servicer shall e-mail such reports or files to the Directing
Certificateholder and the related Companion Loan Holder (if a Serviced Whole
Loan is involved), until the Master Servicer's website is established. In
connection with providing access to the Master Servicer's website, the Master
Servicer may require registration and the acceptance of a disclaimer and
otherwise (subject to the preceding sentence) adopt reasonable rules and
procedures, which may include, to the extent the Master Servicer deems necessary
or appropriate, conditioning access on execution of an agreement governing the
availability, use and disclosure of such information, and which may provide
indemnification to the Master Servicer for any liability or damage that may
arise therefrom.
(e) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12(b) and Section 3.12(c), and the Master
Servicer shall deliver to the Trustee and the Special Servicer the reports set
forth in Section 3.12(d), in an electronic format reasonably acceptable to the
Special Servicer, the Master Servicer and the Trustee. The Master Servicer may,
absent manifest error, conclusively rely on the reports to be provided by the
Special Servicer pursuant to Section 3.12(b) and Section 3.12(c). The Trustee
may, absent manifest error, conclusively rely on the reports to be provided by
the Master Servicer pursuant to Section 3.12(d). In the case of information or
reports to be furnished by the Master Servicer to the Trustee pursuant to
Section 3.12(d), to the extent that such information or reports are, in turn,
based on information or reports to be provided by the Special Servicer pursuant
to Section 3.12(b) or Section 3.12(c) and to the extent that such reports are to
be prepared and delivered by the Special Servicer pursuant to Section 3.12(b) or
Section 3.12(c), the Master Servicer shall have no obligation to provide such
information or reports to the Trustee until it has received the requisite
information or reports from the Special Servicer, and the Master Servicer shall
not be in default hereunder due to a delay in providing the reports required by
Section 3.12(d) caused by the Special Servicer's failure to timely provide any
information or report required under Section 3.12(b) or Section 3.12(c).
(f) Notwithstanding the foregoing, however, the failure of the
Master Servicer or the Special Servicer to disclose any information otherwise
required to be disclosed by this Section 3.12 shall not constitute a breach of
this Section 3.12 to the extent the Master Servicer or the Special Servicer so
fails because such disclosure, in the reasonable belief of the Master Servicer
or the Special Servicer, as the case may be, would violate any applicable law or
any provision of a loan document prohibiting disclosure of information with
respect to the Loans or Mortgaged Properties or would constitute a waiver of the
attorney-client privilege on behalf of the Trust. The Master Servicer and the
Special Servicer may disclose any such information or any additional information
to any Person so long as such disclosure is consistent with applicable law, the
related loan documents and the Servicing Standard. The Master Servicer or the
Special Servicer may affix to any information provided by it any disclaimer it
deems appropriate in its reasonable discretion (without suggesting liability on
the part of any other party hereto).
(g) The Depositor shall provide to the Master Servicer and the
Trustee the initial data (as of the respective Due Dates for the Loans in July
2007 or the most recent earlier date for which such data is available)
contemplated by the CMSA Loan Setup File, the CMSA Loan Periodic Update File,
the CMSA Operating Statement Analysis Report and the CMSA Property File. In
addition, the Depositor shall cause each Mortgage Loan Seller to prepare (or
cause to be prepared on its behalf) a CMSA Loan Set-Up File.
(h) If the Master Servicer or the Special Servicer is required to
deliver any statement, report or information under any provision of this
Agreement, the Master Servicer or the Special Servicer, as the case may be, may
satisfy such obligation by (x) physically delivering a paper copy of such
statement, report or information, (y) delivering such statement, report or
information in a commonly used electronic format or (z) making such statement,
report or information available on the Master Servicer's internet website or the
Trustee's Website, unless this Agreement expressly specifies a particular method
of delivery. Notwithstanding the foregoing, the Trustee may request delivery in
paper format of any statement, report or information required to be delivered to
the Trustee and clause (z) of this paragraph shall not apply to the delivery of
any information required to be delivered to the Trustee unless the Trustee
consents to such delivery.
Section 3.13 [RESERVED].
Section 3.14 [RESERVED].
Section 3.15 Access to Certain Information.
(a) Each of the Master Servicer and the Special Servicer shall
afford to the Trustee, the Depositor, each Rating Agency, the Directing
Certificateholder and the related Companion Loan Holder or any Controlling
Holder, as applicable (if a Serviced Whole Loan is involved), and to the OTS,
the FDIC and any other banking or insurance regulatory authority that may
exercise authority over any Certificateholder or Certificate Owner, access to
any records regarding the Loans and the servicing thereof within its control,
except to the extent it is prohibited from doing so by applicable law, the terms
of the loan documents or contract entered into prior to the Closing Date or to
the extent such information is subject to a privilege under applicable law to be
asserted on behalf of the Certificateholders. Such access shall be afforded
without charge but only upon reasonable prior written request and during normal
business hours at the offices of the Master Servicer or the Special Servicer, as
the case may be, designated by it; provided, however, Certificateholders and
Certificate Owners shall be required to pay their own photocopying costs. The
Master Servicer and the Special Servicer shall each be entitled to affix a
reasonable disclaimer to any information provided by it for which it is not the
original source (without suggesting liability on the part of any other party
hereto). In connection with providing access to such records to the Directing
Certificateholder and any related Companion Loan Holder or any Controlling
Holder, as applicable (if a Serviced Whole Loan is involved), the Master
Servicer and the Special Servicer may each require registration (to the extent
access is provided via the Master Servicer's internet website) and the
acceptance of a reasonable disclaimer and otherwise adopt reasonable rules and
procedures, which may include, to the extent the Master Servicer or the Special
Servicer, as applicable, deems necessary or reasonably appropriate, conditioning
access on the execution and delivery of an agreement reasonably governing the
availability, use and disclosure of such information. The failure of the Master
Servicer or the Special Servicer to provide access as provided in this Section
3.15 as a result of a confidentiality obligation shall not constitute a breach
of this Section 3.15. The Master Servicer and the Special Servicer may each deny
any of the foregoing persons access to confidential information or any
intellectual property that the Master Servicer or the Special Servicer is
restricted by license or contract from disclosing. In connection with providing
access to information pursuant to this Section 3.15 to parties other than the
Trustee, the Master Servicer and the Special Servicer may each (i) affix a
reasonable disclaimer to any information provided by it for which it is not the
original source (without suggesting liability on the part of any other party
hereto); (ii) affix to any information provided by it a reasonable statement
regarding securities law restrictions on such information and/or condition
access to information on the execution of a reasonable confidentiality
agreement; (iii) withhold access to confidential information or any intellectual
property; and (iv) withhold access to items of information contained in the
Servicing File for any Mortgage Loan if the disclosure of such items is
prohibited by applicable law or the provisions of any related loan documents or
would constitute a waiver of the attorney client privilege. Notwithstanding any
provision of this Agreement to the contrary, the failure of the Master Servicer
or the Special Servicer to disclose any information otherwise required to be
disclosed by it pursuant to this Agreement shall not constitute a breach of this
Agreement to the extent that the Master Servicer or the Special Servicer, as the
case may be, determines, in its reasonable good faith judgment consistent with
the applicable Servicing Standard, that such disclosure would violate applicable
law or any provision of a loan document or, in the case of a Serviced Whole
Loan, any document relating to the related Companion Loan prohibiting disclosure
of information with respect to the Mortgage Loans, the Companion Loan related to
a Serviced Whole Loan or the Mortgaged Properties, constitute a waiver of the
attorney client privilege on behalf of the Trust or the Trust Fund or otherwise
materially harm the Trust or the Trust Fund. Neither the Master Servicer nor the
Special Servicer shall be liable for providing or disseminating information in
accordance with the terms of this Agreement.
(b) Once a month, each of the Master Servicer and the Special
Servicer shall, without charge, make a knowledgeable Servicing Officer available
to answer questions from the Directing Certificateholder during regular business
hours at such time and for such duration as the Master Servicer or the Special
Servicer, as applicable, and the Directing Certificateholder shall reasonably
agree, regarding the performance and servicing of the Mortgage Loans and/of REO
Properties for which the Master Servicer or the Special Servicer, as the case
may be, is responsible. As a condition to such disclosure, the Directing
Certificateholder shall execute a confidentiality agreement substantially in the
form attached hereto as Exhibit M.
Section 3.16 Title to REO Property; REO Account.
(a) If title to any REO Property (other than any REO Property
related to any Non-Serviced Loan) is acquired, the deed or certificate of sale
shall be issued to the Trustee or its nominee, on behalf of the
Certificateholders and, if a Serviced Whole Loan is affected, the related
Companion Loan Holder or, subject to Section 3.09(b), to a single member limited
liability company of which the Trust is the sole member, which limited liability
company is formed or caused to be formed by the Special Servicer at the expense
of the Trust for the purpose of taking title to one or more REO Properties
pursuant to this Agreement. The limited liability company shall be (i)
disregarded as an entity separate from the Trust pursuant to Treasury
Regulations Section 301.7701-3(b), and (ii) a manager-managed limited liability
company, with the Special Servicer to serve as the initial manager to manage the
property of the limited liability company, including any applicable REO Property
(other than any REO Property related to any Non-Serviced Loan), in accordance
with the terms of this Agreement as if such property was held directly in the
name of the Trust or Trustee under this Agreement. The Special Servicer, on
behalf of the Trust (and in the case of a Serviced Whole Loan, on behalf of the
related Companion Loan Holder), shall sell any REO Property (other than any REO
Property related to any Non-Serviced Loan) by the end of the third calendar year
following the year in which the Trustee on behalf of the Certificateholders and,
if applicable, the related Companion Loan Holder acquire ownership of such REO
Property for purposes of Section 860G(a)(8) of the Code, unless the Special
Servicer either (i) applies, more than 60 days prior to the expiration of such
liquidation period, and is granted an extension of time (an "REO Extension") by
the IRS to sell such REO Property or (ii) obtains for the Trustee an Opinion of
Counsel, addressed to the Trustee, to the effect that the holding by the Trust
of such REO Property subsequent to the end of the third calendar year following
the year in which such acquisition occurred will not result in an Adverse REMIC
Event with respect to either of REMIC I or REMIC II. Regardless of whether the
Special Servicer applies for or is granted the REO Extension contemplated by
clause (i) of the immediately preceding sentence or obtains the Opinion of
Counsel referred to in clause (ii) of such sentence, the Special Servicer shall
act in accordance with the Servicing Standard to liquidate such REO Property on
a timely basis. If the Special Servicer is granted such REO Extension or obtains
such Opinion of Counsel, the Special Servicer shall (i) promptly forward a copy
of such REO Extension or Opinion of Counsel to the Trustee, and (ii) sell such
REO Property within such extended period as is permitted by such REO Extension
or contemplated by such Opinion of Counsel, as the case may be. Any expense
incurred by the Special Servicer in connection with its applying for and being
granted the REO Extension contemplated by clause (i) of the third preceding
sentence or its obtaining the Opinion of Counsel contemplated by clause (ii) of
the third preceding sentence, and for the creation of and the operating of a
limited liability company, shall be covered by, and be reimbursable as, a
Servicing Advance. In the case of the Trust's beneficial interest in a Mortgaged
Property acquired under any Non-Serviced Loan Pooling Agreement, the Special
Servicer shall coordinate with the applicable special servicer with respect to
any REO Extension on behalf of REMIC I.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property (other than any REO
Property related to any Non-Serviced Loan) separate and apart from its own funds
and general assets. If a REO Acquisition shall occur, except as provided in the
immediately succeeding sentence, the Special Servicer shall establish and
maintain one or more Pool REO Accounts, to be held on behalf of the Trustee in
trust for the benefit of the Certificateholders, for the retention of revenues
and other proceeds derived from each REO Property. If such REO Acquisition
occurs with respect to any Mortgaged Property securing a Serviced Whole Loan,
the Special Servicer shall establish a REO Account solely with respect to such
property (a "Serviced Whole Loan REO Account"), which may be a sub-account of
the Pool REO Account, to be held for the benefit of the Certificateholders and
the related Companion Loan Holder. Each REO Account shall be an Eligible Account
and may consist of one account for all the REO Properties. The Special Servicer
shall deposit, or cause to be deposited, into the related REO Account, within
two Business Days of receipt, all REO Revenues, Liquidation Proceeds (net of all
Liquidation Expenses paid therefrom) and Insurance Proceeds received in respect
of a REO Property. The Special Servicer is authorized to pay out of related
Liquidation Proceeds any Liquidation Expenses incurred in respect of a REO
Property and outstanding at the time such proceeds are received. Funds in a REO
Account may be invested only in Permitted Investments in accordance with Section
3.06. The Special Servicer shall be entitled to make withdrawals from a REO
Account to pay itself, as Additional Special Servicing Compensation in
accordance with Section 3.11(d), interest and investment income earned in
respect of amounts held in such REO Account as provided in Section 3.06(b) (but
only to the extent of the Net Investment Earnings with respect to the REO
Account for any Collection Period). The Special Servicer shall give notice to
the other parties hereto and if a Serviced Whole Loan is involved, the related
Companion Loan Holder, of the location of a REO Account when first established
and of the new location of a REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account
funds necessary for the proper operation, management, maintenance and
disposition of any REO Property (other than any REO Property related to any
Non-Serviced Loan), but only to the extent of amounts on deposit in the
applicable REO Account relating to such REO Property. By 2:00 p.m., New York
City time, on the Business Day following the end of each Collection Period, the
Special Servicer shall withdraw from the related REO Account and deposit into
the Certificate Account or the applicable Serviced Whole Loan Custodial Account,
as applicable, or deliver to the Master Servicer (which shall deposit such
amounts into the Certificate Account or the applicable Serviced Whole Loan
Custodial Account, as applicable), the aggregate of all amounts received in
respect of each such REO Property during such Collection Period, net of any
withdrawals made out of such amounts pursuant to the preceding sentence;
provided that the Special Servicer may retain in the applicable REO Account such
portion of such proceeds and collections as may be necessary to maintain a
reserve of sufficient funds for the proper operation, management, leasing,
maintenance and disposition of any such REO Property (including the creation of
a reasonable reserve for repairs, replacements, necessary capital improvements
and other related expenses), such reserve not to exceed an amount sufficient to
cover such items reasonably expected to be incurred during the following
12-month period. For purposes of the foregoing, the Pool REO Account and a
Serviced Whole Loan REO Account correspond to the Certificate Account and the
related Serviced Whole Loan Custodial Account, respectively.
(d) The Special Servicer shall keep and maintain separate
records, on a property-by-property basis, for the purpose of accounting for all
deposits to, and withdrawals from, a REO Account pursuant to Section 3.16(b) or
(c).
Section 3.17 Management of REO Property.
(a) If title to any REO Property (other than any REO Property
related to any Non-Serviced Loan) is acquired, the Special Servicer shall
manage, conserve, protect, operate and lease such REO Property for the benefit
of the Certificateholders (and, in the case of a Serviced Whole Loan, for the
benefit of the related Companion Loan Holder as a collective whole and, in the
case of an A/B Whole Loan, taking into account the subordination of the related
Companion Loan) solely for the purpose of its timely disposition and sale in a
manner that does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or result in the
receipt by the Trust Fund of any "income from non permitted assets" within the
meaning of Section 860F(a)(2)(B) of the Code. Subject to the foregoing, however,
the Special Servicer shall have full power and authority to do any and all
things in connection therewith as are in the best interests of and for the
benefit of the Certificateholders (and, in the case of a Serviced Whole Loan,
for the benefit of the related Companion Loan Holder (as a collective whole and,
in the case of a Serviced Whole Loan that is an A/B Whole Loan, taking into
account the subordination of the related Companion Loan) (as determined by the
Special Servicer in its good faith and reasonable judgment). Subject to this
Section 3.17, the Special Servicer may earn "net income from foreclosure
property" within the meaning of Section 860G(c) of the Code if it determines
that earning such income is in the best interests of Certificateholders, or, if
a Serviced Whole Loan is affected, the interests of the Certificateholders and
the related Companion Loan Holder (as a collective whole and, in the case of a
Serviced Whole Loan that is an A/B Whole Loan, taking into account the
subordination of the related Companion Loan), on a net after-tax basis as
compared with net leasing such REO Property or operating such REO Property on a
different basis. In connection therewith, the Special Servicer shall deposit or
cause to be deposited on a daily basis (and in no event later than the second
Business Day following receipt of such funds), in the applicable REO Account all
revenues received by it with respect to each such REO Property and the related
REO Loan, and shall withdraw from the applicable REO Account, to the extent of
amounts on deposit therein with respect to such REO Property, funds necessary
for the proper operation, management, leasing, maintenance and disposition of
such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain, lease and
dispose of such REO Property.
To the extent that amounts on deposit in the REO Account in
respect of any such REO Property are insufficient for the purposes set forth in
clauses (i) through (iv) of this Section 3.17(a) with respect to such REO
Property, the Special Servicer shall, subject to Section 3.19(d), direct the
Master Servicer to make (and the Master Servicer shall so make) Servicing
Advances in such amounts as are necessary for such purposes unless (as evidenced
in the manner contemplated by Section 3.11(g)) the Master Servicer determines,
in its reasonable, good faith judgment, that such payment would be a
Nonrecoverable Servicing Advance.
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property (other than any REO Property
related to any Non-Serviced Loan), if the New Lease by its terms will
give rise to any income that does not constitute Rents from Real
Property;
(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any such REO
Property, other than the completion of a building or other improvement
thereon, and then only if more than 10% of the construction of such
building or other improvement was completed before default on the related
Serviced Loan became imminent, all within the meaning of Section
856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any such REO Property on any
date more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer as a Servicing
Advance) to the effect that such action will not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code at any time that it is held by the Trust Fund, in which case the
Special Servicer may take such actions as are specified in such Opinion of
Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property (other than any
REO Property related to any Non-Serviced Loan) within 90 days of the acquisition
date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund, unless a Serviced Whole Loan is involved, in
which case such fees shall be netted out of collections on the REO
Property prior to being remitted to the Special Servicer) shall be
reasonable and customary in light of the nature and locality of the REO
Property;
(iii) any such contract shall require, or shall be administered
to require, that the Independent Contractor (A) pay all costs and
expenses incurred in connection with the operation and management of such
REO Property, including, without limitation, those listed in Section
3.17(a), and (B) remit all related revenues collected (net of its fees
and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to
any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of any of its
duties and obligations hereunder with respect to the operation and
management of any such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto
to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such REO
Property.
The Special Servicer shall be entitled to enter into any
agreement with any Independent Contractor performing services for it related to
its duties and obligations hereunder for indemnification of the Special Servicer
by such Independent Contractor, and nothing in this Agreement shall be deemed to
limit or modify such indemnification. To the extent the costs of any contract
with an Independent Contractor for the operation and maintenance of any REO
Property are greater than the revenues from such REO Property (other than any
REO Property related to any Non-Serviced Loan), such excess costs shall be
covered by and reimbursable as a Servicing Advance.
(d) When and as necessary, the Special Servicer shall send to the
Trustee and the Master Servicer a statement prepared by the Special Servicer
setting forth the amount of net income or net loss, as determined for federal
income tax purposes, resulting from the operation and management of a trade or
business on, the furnishing or rendering of a non customary service to the
tenants of, or the receipt of any other amount not constituting Rents from Real
Property in respect of, any REO Property (other than any REO Property related to
any Non-Serviced Loan) in accordance with Section 3.17(a) and Section 3.17(b).
Section 3.18 Resolution of Defaulted Serviced Loans and REO
Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Loan or a related REO
Property (other than any REO Property related to any Non-Serviced Loan) only on
the terms and subject to the conditions set forth in this Section 3.18 or as
otherwise expressly provided in or contemplated by Section 2.03(a), Section
9.01, an Intercreditor Agreement, or, in the case of a Mortgage Loan with a
related Mezzanine Loan, pursuant to the terms of the related Mezzanine
Intercreditor Agreement, or, in the case of a Whole Loan pursuant to the terms
of the related Intercreditor Agreement.
(b) After the Master Servicer has pursuant to Section 3.21(a)
notified the Special Servicer of a Servicing Transfer Event and in connection
therewith has provided the Special Servicer with the information required under
Section 3.21(a) with respect to any Defaulted Serviced Loan, the Special
Servicer shall determine the fair value of such Defaulted Serviced Loan in
accordance with the Servicing Standard as hereinafter provided; provided,
however, such determination shall be made without taking into account any effect
the restrictions on the sale of such Mortgage Loan contained herein may have on
the value of such Defaulted Serviced Loan; provided, further, the Special
Servicer shall use reasonable efforts promptly to obtain an Appraisal with
respect to the related Mortgaged Property unless it has an Appraisal that is
less than 12 months old and has no actual knowledge of, or notice of, any event
that in the Special Servicer's judgment would materially affect the validity of
such Appraisal. The Special Servicer shall make its fair value determination as
soon as reasonably practicable (but in any event within 30 days) after its
receipt of such new Appraisal, if applicable. The Special Servicer will, from
time to time, but not less often than every 90 days, adjust its fair value
determination based upon changed circumstances, new information and other
relevant factors, if any, in each instance in accordance with the Servicing
Standard. The Special Servicer shall notify the Trustee, the Master Servicer,
the Majority Certificateholder of the Controlling Class and the related
Companion Loan Holder, if a Mortgage Loan is included in any Serviced Whole Loan
is involved, promptly upon its fair value determination and any adjustment
thereto. The Special Servicer shall also deliver to the Master Servicer, the
Majority Certificateholder of the Controlling Class and the related Companion
Loan Holder, if a Mortgage Loan included in any Serviced Whole Loan is involved,
the most recent Appraisal of the related Mortgaged Property then in the Special
Servicer's possession, together with such other third-party reports and other
information then in the Special Servicer's possession that the Special Servicer
reasonably believes to be relevant to the fair value determination with respect
to such Mortgage Loan (such materials are, collectively, the "Determination
Information"). Notwithstanding the foregoing, the Special Servicer shall not be
required to deliver the Determination Information to the Master Servicer, and
shall instead deliver the Determination Information to the Trustee, if the
Master Servicer will not be determining whether the Option Price represents fair
value for the Defaulted Serviced Loan, pursuant to Section 3.18(e). The
reasonable out-of-pocket costs and expenses incurred by the Special Servicer in
making its fair value determination shall be paid and reimbursed as a Servicing
Advance.
In determining the fair value of any Defaulted Serviced Loan, the
Special Servicer shall take into account, among other factors, the period and
amount of the delinquency on such Defaulted Serviced Loan, the occupancy level
and physical condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property and the expected recoveries from pursuing a work-out or foreclosure
strategy instead of selling the Defaulted Serviced Loan to the Option Holder. In
addition, the Special Servicer shall refer to the Determination Information and
all other relevant information obtained by it or otherwise contained in the
Mortgage File and provided to the Special Servicer; provided that the Special
Servicer shall take account of any change in circumstances regarding the related
Mortgaged Property known to the Special Servicer that has occurred subsequent
to, and that would, in the Special Servicer's reasonable judgment, materially
affect the value of the related Mortgaged Property reflected in, the most recent
related Appraisal. Furthermore, the Special Servicer shall consider all
available objective third-party information obtained from generally available
sources, as well as information obtained from Independent vendors providing real
estate services to the Special Servicer, concerning the market for distressed
real estate loans and the real estate market for the subject property type in
the area where the related Mortgaged Property is located. The reasonable cost of
all third party consultants and related reports, including but not limited to
appraisals, inspection reports and broker opinions of value, reasonably incurred
by the Special Servicer pursuant to this Section 3.18(b) shall constitute, and
be reimbursable as, Servicing Advances. The other parties to this Agreement
shall cooperate with all reasonable requests for information.
(c) At the time a Mortgage Loan becomes a Defaulted Serviced
Loan, the Special Servicer and the Majority Certificateholder of the Controlling
Class (each, together with their assignees, an "Option Holder") will have an
assignable option (the "Purchase Option") to purchase such Defaulted Serviced
Loan, subject to the rights of the related Controlling Holder, if the Mortgage
Loan included in any A/B Whole Loan is involved, and subject to Section 3.18(l))
from the Trust Fund at a price (the "Option Price") equal to (A) if the Special
Servicer has not yet determined the fair value of such Defaulted Serviced Loan,
the sum of (1) the Stated Principal Balance thereof, together with all accrued
and unpaid interest thereon at the Mortgage Rate, (2) any related Prepayment
Premium then payable by the Mortgagor, to the extent the Special Servicer or the
Special Servicer's assignee is identified as the Person that will acquire the
related Mortgage Loan, (3) all related Advances for which the Trust Fund, the
Master Servicer, the Special Servicer or the Trustee has not been reimbursed,
together with all accrued and unpaid interest thereon at the Advance Rate, and
(4) all accrued Master Servicing Fees, Special Servicing Fees, Trustee Fees,
Liquidation Fees, Workout Fees and Additional Trust Fund Expenses allocable to
such Defaulted Serviced Loan whether recovered or unrecovered from the related
Mortgagor or (B) if the Special Servicer has determined the fair value of such
Defaulted Serviced Loan pursuant to Section 3.18(b), an amount at least equal to
such fair value with respect to any Purchase Option held by the Majority
Certificateholder of the Controlling Class or the Special Servicer only.
Notwithstanding the foregoing, for a period of 90 days after it receives notice
of the Special Servicer's fair value determination and the related expiration
(if any) of the applicable purchase option held by the related A/B Whole Loan
Purchase Option Holder (the "Option Period"), only the Purchase Option held by
the Majority Certificateholder of the Controlling Class may be exercised.
Notwithstanding the foregoing and for the avoidance of doubt, none of the
Majority Certificateholder of the Controlling Class, the related A/B Whole Loan
Purchase Option Holder or the related Mezzanine Loan Holder (with respect to a
Mezzanine Loan), shall be required to pay a Liquidation Fee with respect to any
applicable purchase right under this Agreement or in the applicable
Intercreditor Agreement or with respect to a purchase of a related Defaulted
Serviced Loan at its fair value as determined in this Section 3.18 if such
purchase occurs or purchase right is exercised not later than 90 days from the
date that the Special Servicer has initially determined the fair value for the
related Defaulted Serviced Loan.
Any Option Holder may sell, transfer, assign or otherwise convey
its Purchase Option with respect to any Defaulted Serviced Loan to any party
(other than a Person whose acquisition of the Defaulted Serviced Loan would
violate the terms of any related intercreditor or similar agreement) at any time
after the related Mortgage Loan becomes a Defaulted Serviced Loan. The
transferor of any Purchase Option shall notify the Trustee and the Master
Servicer of such transfer and such notice shall include the transferee's name,
address, telephone number, facsimile number and appropriate contact person(s)
and shall be acknowledged in writing by the transferee.
Notwithstanding the foregoing, the Majority Certificateholder of
the Controlling Class shall have the right to exercise its Purchase Option prior
to any exercise of the Purchase Option by the Special Servicer; provided,
however, if the Purchase Option is not exercised by the Majority
Certificateholder of the Controlling Class or any assignee thereof within 60
days of a Mortgage Loan becoming a Defaulted Serviced Loan, then the Special
Servicer shall have the right to exercise its Purchase Option prior to any
exercise by the Majority Certificateholder of the Controlling Class and the
Special Servicer or its assignee may exercise such Purchase Option at any time
during the 30-day period immediately following the expiration of such 60-day
period. Following the expiration of each such 30-day period, the Majority
Certificateholder of the Controlling Class shall again have the exclusive right
to exercise the Purchase Option.
Each Option Holder's Purchase Option with respect to any
Defaulted Serviced Loan, if not exercised, will automatically terminate (A) once
the related Defaulted Serviced Loan is no longer a Defaulted Serviced Loan;
provided, however, if such Mortgage Loan subsequently becomes a Defaulted
Serviced Loan, the related Purchase Option shall again be exercisable, (B) upon
the acquisition, by or on behalf of the Trust Fund, of title to the related
Mortgaged Property through foreclosure or deed-in-lieu of foreclosure, (C) upon
the modification or pay-off, in full or at a discount, of such Defaulted
Serviced Loan in connection with a workout, or (D) subject to the Master
Servicer's determination set forth in Section 3.18(e), upon another Option
Holder's exercise of its Purchase Option with respect to the related Mortgage
Loan becoming effective pursuant to Section 3.18(d).
(d) Upon receipt of notice from the Special Servicer indicating
that a Mortgage Loan has become a Defaulted Serviced Loan, and after the
expiration of the Option Period, each Option Holder (whether the original
grantee of such option or any subsequent transferee) may exercise its Purchase
Option by providing the Master Servicer and the Trustee written notice thereof
(the "Purchase Option Notice"), in the form of Exhibit I, which notice shall
identify the Person that, on its own or through an Affiliate, will acquire the
related Mortgage Loan upon closing and shall specify a cash exercise price at
least equal to the Option Price. Immediately upon receipt of such Purchase
Option Notice, the Master Servicer shall notify the remaining Option Holders
that a Purchase Option has been exercised. Within ten days thereafter, each
remaining Option Holder may submit to the Master Servicer and the Trustee a
Purchase Option Notice for the related Defaulted Serviced Loan. Upon the
expiration of such ten-day period, or such sooner time as all remaining Option
Holders have submitted Purchase Option Notices, the Master Servicer shall notify
the Option Holder whose Purchase Option Notice included the highest exercise
price that the exercise of its Purchase Option is effective. The Master Servicer
shall also notify the Trustee of such effective exercise. In the event that more
than one Option Holder exercises its Purchase Option at the same price, the
Purchase Option Notice first received by the Master Servicer shall be effective.
The exercise of any Purchase Option pursuant to this Section 3.18(d) shall be
irrevocable.
(e) If the Special Servicer or any Controlling Class Option
Holder, or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan, and
the Option Price is based upon the Special Servicer's fair value determination,
the Master Servicer shall determine whether the Option Price represents fair
value for the Defaulted Serviced Loan, in the manner set forth in Section
3.18(b) and as soon as reasonably practicable but in any event within 30 days
(except as such period may be extended as set forth in this paragraph) of its
receipt of the Purchase Option Notice and Determination Information from the
Special Servicer. In determining whether the Option Price represents the fair
value of such Defaulted Serviced Loan, the Master Servicer may obtain an opinion
as to the fair value of such Defaulted Serviced Loans, taking into account the
factors set forth in Section 3.18(b), from a Qualified Appraiser or other
Independent expert of recognized standing having experience in evaluating the
value of defaulted mortgage loans, which opinion shall be based on a review,
analysis and evaluation of the Determination Information, and to the extent such
Qualified Appraiser or third party deems any such Determination Information to
be defective, incorrect, insufficient or unreliable, such Person may base its
opinion on such other information it deems reasonable or appropriate, and,
absent manifest error, the Master Servicer may conclusively rely on the opinion
of any such Person that was chosen by the Master Servicer with reasonable care.
Notwithstanding the 30-day time period referenced above in this paragraph, the
Master Servicer will have an additional 15 days to make a fair value
determination if the Person referenced in the immediately preceding sentence has
determined that the Determination Information is defective, incorrect,
insufficient or unreliable. The reasonable costs of all appraisals, inspection
reports and opinions of value, reasonably incurred by the Master Servicer or any
such third party pursuant to this paragraph shall be advanced by the Master
Servicer and shall constitute, and be reimbursable as, Servicing Advances. In
connection with the Master Servicer's determination of fair value, the Special
Servicer shall deliver to the Master Servicer the Determination Information for
the use of the Master Servicer or any such third party.
Notwithstanding anything contained in this Section 3.18(e) to the
contrary, if the Special Servicer or the Majority Certificateholder of the
Controlling Class, or any of their respective Affiliates, is identified in the
Purchase Option Notice as the Person expected to acquire the related Mortgage
Loan, and the Option Price is based upon the Special Servicer's fair value
determination, and the Master Servicer and the Special Servicer are Affiliates,
the Trustee shall determine whether the Option Price represents fair value for
the Defaulted Serviced Loan, in the manner set forth in Section 3.18(b) and as
soon as reasonably practicable but in any event within 30 days (except as such
period may be extended as set forth in this paragraph) of its receipt of the
Purchase Option Notice and Determination Information from the Special Servicer.
In determining whether the Option Price represents the fair value of such
Defaulted Serviced Loan, the Trustee may obtain an opinion as to the fair value
of such Defaulted Serviced Loans, taking into account the factors set forth in
Section 3.18(b), from a Qualified Appraiser or other Independent expert of
recognized standing having experience in evaluating the value of defaulted
mortgage loans, which opinion shall be based on a review, analysis and
evaluation of the Determination Information, and to the extent such Qualified
Appraiser or third party deems any such Determination Information to be
defective, incorrect, insufficient or unreliable, such Person may base its
opinion on such other information it deems reasonable or appropriate, and absent
manifest error, the Trustee may conclusively rely on the opinion of any such
Person that was chosen by the Trustee with reasonable care. Notwithstanding the
30-day time period referenced above in this paragraph, the Trustee will have an
additional 15 days to make a fair value determination if the Person referenced
in the immediately preceding sentence has determined that the Determination
Information is defective, incorrect, insufficient or unreliable. The reasonable
costs of all appraisals, inspection reports and opinions of value, reasonably
incurred by the Trustee or any such third party pursuant to this paragraph shall
be advanced by the Master Servicer and shall constitute, and be reimbursable as,
Servicing Advances. In connection with the Trustee's determination of fair value
the Special Servicer shall deliver to the Trustee the Determination Information
for the use of the Trustee or any such third party.
In the event a designated third party determines that the Option
Price is less than the fair value of the Defaulted Serviced Loan, such party
shall provide its determination, together with all information and reports it
relied upon in making such determination, to the Special Servicer, who shall
then adjust its fair value determination and, consequently, the Option Price,
pursuant to Section 3.18(b). The Special Servicer shall promptly provide written
notice of any adjustment of the Option Price to the Option Holder whose Purchase
Option has been declared effective pursuant to Section 3.18(d). Upon receipt of
such notice, such Option Holder shall have three Business Days to (i) accept the
Option Price as adjusted and proceed in accordance with Section 3.18(f), or (ii)
reject the Option Price as adjusted, in which case such Option Holder shall not
be obligated to close the purchase of the Defaulted Serviced Loan. Upon notice
from such Option Holder, or the Special Servicer, that such Option Holder
rejects the Option Price as adjusted, the Master Servicer and the Trustee shall
provide the notices described in the second paragraph of Section 3.18(f) and
thereafter any Option Holder may exercise its purchase option in accordance with
this Section 3.18, at the Option Price as adjusted.
(f) The Option Holder whose Purchase Option is declared effective
pursuant to Section 3.18(d) shall be required to pay the purchase price
specified in its Purchase Option Notice to the Master Servicer within ten
Business Days of its receipt of the Master Servicer's notice confirming that the
exercise of its Purchase Option is effective. Upon receipt of an Officer's
Certificate from the Master Servicer specifying the date for closing the
purchase of the related Defaulted Serviced Loan, and the purchase price to be
paid therefor, the Trustee shall deliver at such closing for release to or at
the direction of such Option Holder, the related Mortgage File, and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be provided to it by such Option Holder and are
reasonably necessary to vest in the purchaser or any designee thereof the
ownership of such Mortgage Loan. In connection with any such purchase by any
Person other than it, the Special Servicer shall deliver the related Mortgage
File to or at the direction of the purchaser. In any case, the Master Servicer
shall deposit the purchase price into the Certificate Account within one
Business Day following receipt.
The Master Servicer shall immediately notify the Trustee and the
Special Servicer upon the holder of the effective Purchase Option's failure to
remit the purchase price specified in its Purchase Option Notice pursuant to
this Section 3.18(f). Thereafter, the Trustee shall notify each Option Holder of
such failure and any Option Holder may then exercise its purchase option in
accordance with this Section 3.18.
(g) Unless and until the Purchase Option with respect to any
Defaulted Serviced Loan is exercised, the Special Servicer shall pursue such
other resolution strategies with respect to such Defaulted Serviced Loan
including workout, foreclosure and sale of any REO Property, as the Special
Servicer may deem appropriate, consistent with the Asset Status Report and the
Servicing Standard; provided, however, the Special Servicer shall not sell any
Defaulted Serviced Loan (other than in connection with exercise of a related
Purchase Option).
(h) The Special Servicer shall sell a REO Property (other than
any REO Property related to any Non-Serviced Mortgage Loan) in the manner set
forth in Section 3.16(a). The Special Servicer may purchase any REO Property
(other than any REO Property related to any Non-Serviced Mortgage Loan) at the
Purchase Price therefor. The Special Servicer may also offer to sell to any
Person any REO Property (other than any REO Property related to any Non-Serviced
Mortgage Loan), if and when the Special Servicer determines, consistent with the
Servicing Standard, that such a sale would be in the best economic interests of
the Trust Fund. The Special Servicer shall give the Trustee, the Master Servicer
and the Directing Certificateholder and the related Companion Loan Holder (if a
Serviced Whole Loan is involved), not less than ten days' prior written notice
of its intention to sell any such REO Property, in which case the Special
Servicer shall accept the highest offer received from any Person for any such
REO Property in an amount at least equal to the Purchase Price therefor. To the
extent permitted by applicable law, and subject to the Servicing Standard, the
Master Servicer, an Affiliate of the Master Servicer, the Special Servicer or an
Affiliate of the Special Servicer, or an employee of any of them may act as
broker in connection with the sale of any such REO Property and may retain from
the proceeds of such sale a brokerage commission that does not exceed the
commission that would have been earned by an independent broker pursuant to a
brokerage agreement entered into at arm's length.
In the absence of any such offer, the Special Servicer shall
accept the highest offer received from any Person that is determined by the
Special Servicer to be a fair price for such REO Property, if the highest
offeror is a Person other than the Special Servicer, the Master Servicer (if the
Master Servicer and Special Servicer are Affiliates) or the Majority
Certificateholder of the Controlling Class, or any of their respective
Affiliates, or if such price is determined to be such a price by the Trustee, if
the highest offeror is the Special Servicer, the Master Servicer (if the Master
Servicer and Special Servicer are Affiliates) or the Majority Certificateholder
of the Controlling Class, or any of their respective Affiliates. Notwithstanding
anything to the contrary herein, neither the Trustee, in its individual
capacity, nor any of its Affiliates may make an offer for or purchase any such
REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the Special
Servicer determines, in accordance with the Servicing Standard, that rejection
of such offer would be in the best interests of the Certificateholders. In
addition, the Special Servicer may accept a lower offer if it determines, in
accordance with the Servicing Standard that acceptance of such offer would be in
the best interests of the Certificateholders (for example, if the prospective
buyer making the lower offer is more likely to perform its obligations, or the
terms offered by the prospective buyer making the lower offer are more
favorable).
In determining whether any offer received from the Special
Servicer, the Master Servicer (if the Master Servicer and Special Servicer are
Affiliates) or the Majority Certificateholder of the Controlling Class, or any
of their respective Affiliates represents a fair price for any such REO Property
(other than any REO Property related to any Non-Serviced Mortgage Loan), the
Trustee shall obtain and may conclusively rely on an Appraisal from a Qualified
Appraiser, at the expense of the Trust Fund. In determining whether any offer
constitutes a fair price for any such REO Property, the Trustee (or, if
applicable, such Qualified Appraiser) shall take into account, and any appraiser
shall be instructed to take into account, as applicable, among other factors,
the physical condition of such REO Property, the state of the local economy and
the Trust Fund's obligation to comply with REMIC Provisions.
(i) Subject to the Servicing Standard and the REMIC Provisions,
the Special Servicer shall act on behalf of the Trust Fund in negotiating and
taking any other action necessary or appropriate in connection with the sale of
any such REO Property (other than any REO Property related to any Non-Serviced
Mortgage Loan), including the collection of all amounts payable in connection
therewith. A sale of any such REO Property shall be without recourse to, or
representation or warranty by, the Trustee, the Depositor, any Servicer, or the
Trust Fund (except that any contract of sale and assignment and conveyance
documents may contain customary representations and warranties of title,
condition and authority so long as the only recourse for breach thereof is to
the Trust Fund) and, if consummated in accordance with the terms of this
Agreement, none of the Master Servicer, the Special Servicer, the Depositor or
the Trustee shall have any liability to the Trust Fund or any Certificateholder
with respect to the purchase price therefor accepted by the Special Servicer or
the Trustee.
(j) The Special Servicer shall, within two Business Days
following its receipt of available funds, remit to the Master Servicer the
proceeds of any sale after deduction of the expenses of such sale incurred in
connection therewith for deposit into the Certificate Account. The Trustee, upon
receipt of an Officer's Certificate from the Master Servicer to the effect that
such deposit has been made, shall release or cause to be released to the party
or parties effecting such purchase (or any designee thereof) the related
Mortgage File, and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as shall be provided to it and are
reasonably necessary to vest in the purchaser of such Defaulted Serviced Loan
effecting such purchase (or any designee thereof) ownership of such Defaulted
Serviced Loan. In connection with any such purchase, the Special Servicer shall
deliver the related Servicing File to the purchaser of such Defaulted Serviced
Loan with the cooperation of the Master Servicer effecting such purchase (or any
designee thereof).
(k) Subject to Sections 3.18(a) through 3.18(j), the Special
Servicer shall act on behalf of the Trustee in negotiating and taking any other
action necessary or appropriate in connection with the sale of any Defaulted
Serviced Loan or REO Property (other than any REO Property related to any
Non-Serviced Mortgage Loan), and the collection of all amounts payable in
connection therewith. In connection therewith, the Special Servicer may charge
prospective offerors, and may retain, fees that approximate the Special
Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or evaluating offers without obligation to deposit such
amounts into the Certificate Account or if a Serviced Whole Loan is involved, in
the related Serviced Whole Loan Custodial Account; provided no such fees and
charges shall be charged by the Special Servicer to the Controlling Class Option
Holder or any assignee in connection with the sale of Defaulted Serviced Loans.
Any sale of a Defaulted Serviced Loan or any REO Property shall be final and
without recourse to the Trustee or the Trust except as provided in Section
3.18(i), and if such sale is consummated in accordance with the terms of this
Agreement, none of the Depositor, the Special Servicer, the Master Servicer or
the Trustee shall have any liability to any Certificateholder with respect to
the purchase price therefor accepted by the Special Servicer or the Trustee.
(l) The Purchase Option with respect to the Pacifica Tower A/B
Mortgage Loan is subject to the purchase rights (the "Pacifica Tower A/B Whole
Loan Purchase Option") of the Pacifica Tower Note B Holder (the "Pacifica Tower
A/B Whole Loan Purchase Option Holder") in accordance with the terms of and as
set forth in Section 11 of the related Intercreditor Agreement. The Purchase
Option with respect to the Metropolis Shopping Center A/B Mortgage Loan is
subject to the purchase rights (the "Metropolis Shopping Center A/B Whole Loan
Purchase Option") of the Metropolis Shopping Center Note B Holder (the
"Metropolis Shopping Center A/B Whole Loan Purchase Option") in accordance with
the terms of and as set forth in Section 8 of the related Intercreditor
Agreement.
(m) Notwithstanding anything to the contrary herein: (i) each
Mezzanine Lender may be entitled to purchase the related Mortgage Loan in
accordance with the terms and conditions set forth in the related Mezzanine
Intercreditor Agreement, even after it has been purchased out of the Trust Fund
pursuant to this Section 3.18 and (ii) the related Note B Holder may be entitled
to purchase the related A/B Whole Loan in accordance with the terms and
conditions set forth in the related Intercreditor Agreement; even after it has
been purchased out of the Trust Fund pursuant to this Section 3.18. Any purchase
of a Specially Serviced Loan that is purchased pursuant to this Section 3.18
will remain subject to the purchase rights of, in each case if applicable: (1)
the related Mezzanine Lender, if any, as set forth in the related Mezzanine
Intercreditor Agreement and (2) the related Controlling Holder as set forth in
the related Intercreditor Agreement with respect to such A/B Whole Loan.
(n) Notwithstanding anything in this Agreement to contrary, in no
event with respect to the Pacifica Tower A/B Whole Loan or the Metropolis
Shopping Center A/B Whole Loan will the related Mortgagor (or any of its
affiliates) be permitted to purchase such Mortgage Loan should such Mortgage
Loan become a Defaulted Serviced Loan under this Agreement.
(o) With respect to each Serviced Whole Loan with a related
Securitized Companion Loan, upon the Trustee having actual knowledge that the
related Mortgage Loan has become a Defaulted Loan, the Trustee shall promptly
send written notice (such notice shall include the option price for such related
Securitized Companion Loan as determined by the Special Servicer based on the
same methodology for determining the fair value of the related Mortgage Loan) to
the applicable trustee under the related Securitized Companion Loan Pooling
Agreement (who shall be instructed to promptly notify, in writing, the
"directing certificateholder" or "controlling class representative" (as defined
in the related Securitized Companion Loan Pooling Agreement) or an analogous
party. Upon receipt of such notice, the purchase option holders designated in
the related Securitized Companion Loan Pooling Agreement shall have the right,
at its option, to purchase the related Securitized Companion Loan from the trust
established pursuant to related Securitized Companion Loan Pooling Agreement for
a price determined by the Special Servicer in accordance with Section 3.18
hereof, with respect to such related Securitized Companion Loan. Such Purchase
Option shall otherwise be on the same terms as the Purchase Option provided to
the Option Holder in Section 3.18(a) mutatis mutandis.
Section 3.19 Additional Obligations of the Master Servicer and
the Special Servicer.
(a) The Master Servicer shall maintain at its Primary Servicing
Office and shall, upon reasonable advance written notice, make available for
review by each Rating Agency and by any Certificateholder or Certificate Owner
or any Person identified to the Master Servicer as a prospective transferee of a
Certificate or an interest therein, copies of the Servicing Files; provided
that, if the Master Servicer in its reasonable, good faith determination
believes that any item of information contained in such Servicing Files is of a
nature that it should be conveyed to all Certificateholders at the same time, it
shall, as soon as reasonably possible following its receipt of any such item of
information, disclose such item of information to the Trustee as part of the
reports to be delivered to the Trustee by the Master Servicer pursuant to
Section 4.02(b), and until the Trustee has either disclosed such information to
all Certificateholders in a Distribution Date Statement or has properly filed
such information with the Commission on behalf of the Trust under the Exchange
Act, the Master Servicer shall be entitled to withhold such item of information
from any Certificateholder or Certificate Owner or prospective transferee of a
Certificate or an interest therein; and provided, further, the Master Servicer
shall not be required to make particular items of information contained in the
Servicing File for any Loan available to any Person if the disclosure of such
particular items of information is expressly prohibited by applicable law or the
provisions of any related loan documents. Except as set forth in the provisos to
the preceding sentence, copies of all or any portion of any Servicing File are
to be made available by the Master Servicer upon request; however, the Master
Servicer shall be permitted to require payment of a sum sufficient to cover the
reasonable out-of-pocket costs for making such copies (other than with respect
to the Rating Agencies and the Majority Certificateholder of the Controlling
Class). The Special Servicer shall, as to each Specially Serviced Loan and REO
Property (other than any REO Property related to any Non-Serviced Loan),
promptly deliver to the Master Servicer a copy of each document or instrument
added to the related Servicing File, and the Master Servicer shall in no way be
in default under this Section 3.19(a) solely by reason of the Special Servicer's
failure to do so.
In connection with providing access to or copies of the items
described in the preceding paragraph, the Master Servicer may require, unless
the Depositor directs otherwise, (a) in the case of Certificate Owners, a
written confirmation executed by the requesting Person, in form reasonably
satisfactory to the Master Servicer, generally to the effect that such Person is
a beneficial holder of Certificates and will otherwise keep such information
confidential and (b) in the case of a prospective purchaser, confirmation
executed by the requesting Person generally to the effect that such Person is a
prospective purchaser of a Certificate or an interest therein, is requesting the
information for use in evaluating a possible investment in Certificates and will
otherwise keep such information confidential. All Certificateholders, by the
acceptance of their Certificates, shall be deemed to have agreed to keep such
information confidential, except to the extent that the Depositor grants written
permission to the contrary or to the extent such information is public
information. The Master Servicer shall not be liable for the dissemination of
information in accordance with this Section 3.19(a).
(b) Promptly following the occurrence of an Appraisal Trigger
Event with respect to any Mortgage Loan or Serviced Whole Loan (each such
Mortgage Loan or Serviced Whole Loan and any related REO Loan, until it ceases
to be such in accordance with the following paragraph, a "Required Appraisal
Serviced Loan"), the Special Servicer shall obtain (or, if such Required
Appraisal Serviced Loan has a Stated Principal Balance of $2,000,000 or less, at
its discretion, conduct) an Appraisal of the related Mortgaged Property, unless
an Appraisal thereof had previously been obtained (or, if applicable, conducted)
within the preceding 12-month period and there has been no subsequent material
change in the circumstances surrounding the related Mortgaged Property that, in
the judgment of the Special Servicer, would materially affect the value of the
property, and shall deliver a copy of such Appraisal to the Trustee, the Master
Servicer, the Directing Certificateholder, the related Companion Loan Holder (if
a Serviced Whole Loan is involved) and (upon request) any Holder of a
Non-Registered Certificate (other than a Class R-I or Class R-II Certificate),
subject, in each instance, to the second paragraph of Section 12.10(b). If such
Appraisal is obtained from a Qualified Appraiser, the cost thereof shall be
covered by, and be reimbursable as, a Servicing Advance. Promptly following the
receipt of, and based upon, such Appraisal, the Special Servicer shall determine
and report to the Trustee, the Master Servicer, the Directing Certificateholder,
the related Companion Loan Holder (if a Serviced Whole Loan is involved) and
(upon request) any Holder of a Non-Registered Certificate (other than a Class
R-I or Class R-II Certificate), subject, in each instance, to Section 12.10(b),
the then applicable Appraisal Reduction Amount, if any, with respect to the
subject Required Appraisal Serviced Loan.
For so long as any Serviced Loan or REO Loan remains a Required
Appraisal Serviced Loan, the Special Servicer shall, within 30 days of each
anniversary of such loan's having become a Required Appraisal Serviced Loan,
obtain (or, if such Required Appraisal Serviced Loan has a Stated Principal
Balance of $2,000,000 or less, at its discretion, conduct) an update of the
prior Appraisal, and shall deliver a copy of such update to the Trustee, the
Master Servicer, the Directing Certificateholder, the related Companion Loan
Holder (if a Serviced Whole Loan is involved) and (upon request) any Holder of a
Non-Registered Certificate (other than a Class R-I or Class R-II Certificate),
subject, in each instance, to Section 12.10(b). If such update is obtained from
a Qualified Appraiser, the cost thereof shall be covered by, and be reimbursable
as, a Servicing Advance. Promptly following the receipt of, and based upon, such
update, the Special Servicer shall redetermine and report to the Trustee, the
Master Servicer, the Directing Certificateholder, the related Companion Loan
Holder or any Controlling Holder, as applicable, related to a Serviced Whole
Loan (subject, in each instance, to Section 12.10(b)) and (upon request) any
Holder of a Non-Registered Certificate (other than a Class R-I or Class R-II
Certificate subject to Section 12.10(b)), the then applicable Appraisal
Reduction Amount, if any, with respect to the subject Required Appraisal
Serviced Loan.
The Directing Certificateholder and the related Companion Loan
Holder (if a Serviced Whole Loan is involved and to the extent so provided in
the applicable Intercreditor Agreement) have the right at any time to require
that the Special Servicer obtain a new Appraisal of the subject Mortgaged
Property in accordance with MAI standards from a Qualified Appraiser selected by
the Special Servicer, at the expense of the requesting party. Upon receipt of
such Appraisal the Special Servicer shall deliver a copy thereof to the Trustee,
the Master Servicer, the Directing Certificateholder and the related Companion
Loan Holder (if a Serviced Whole Loan is involved). Promptly following the
receipt of, and based upon, such Appraisal, the Special Servicer shall
redetermine and report to the Trustee, the Master Servicer, the Directing
Certificateholder and the related Companion Loan Holder (if a Serviced Whole
Loan is involved), the then applicable Appraisal Reduction Amount, if any, with
respect to the subject Required Appraisal Serviced Loan.
(c) The Master Servicer and the Special Servicer shall each
deliver to the other, to the Trustee (but only upon its request), to the
Directing Certificateholder and to the related Companion Loan Holder (if a
Serviced Whole Loan is involved), copies of all Appraisals, environmental
reports and engineering reports (or, in each case, updates thereof) obtained by
it with respect to any Mortgaged Property or REO Property. Upon the request of
any Rating Agency or any Holder of a Non-Registered Certificate (except a Class
R-I or Class R-II Certificate), pursuant to Section 8.12(b), the Trustee will
inform the Master Servicer or Special Servicer, as applicable, of such request
and, if necessary, the Master Servicer or Special Servicer, as applicable, will
deliver instructions, whereupon either such party, as applicable, shall deliver
copies of any of the items delivered pursuant to the preceding sentence to such
requesting Person.
(d) No more frequently than once per calendar month, the Special
Servicer may require the Master Servicer, and the Master Servicer shall be
obligated subject to the second following paragraph to reimburse the Special
Servicer for any Servicing Advances that were made by the Special Servicer
(notwithstanding the fact that it has no obligation to make such Servicing
Advances), but not previously reimbursed (whether pursuant to this Section
3.19(d) or otherwise) to the Special Servicer, and to pay the Special Servicer
interest thereon at the Reimbursement Rate from the date made to, but not
including, the date of reimbursement. Such reimbursement and any accompanying
payment of interest shall be made within ten days of the request therefor by
wire transfer of immediately available funds to an account designated by the
Special Servicer. Upon the Master Servicer's reimbursement to the Special
Servicer of any Servicing Advance and payment to the Special Servicer of
interest thereon, all in accordance with this Section 3.19(d), the Master
Servicer shall for all purposes of this Agreement be deemed to have made such
Servicing Advance at the same time as the Special Servicer originally made such
Advance, and accordingly, the Master Servicer shall be entitled to reimbursement
for such Advance, together with Advance Interest thereon, at the same time, in
the same manner and to the same extent as the Master Servicer would otherwise
have been entitled if it had actually made such Servicing Advance.
Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer (i) is required under any other provision of
this Agreement to direct the Master Servicer to make a Servicing Advance or (ii)
is otherwise aware a reasonable period in advance that it is reasonably likely
that the Special Servicer will incur a cost or expense that will, when incurred,
constitute a Servicing Advance, the Special Servicer shall (in the case of
clause (i) of this sentence), and shall use reasonable efforts to (in the case
of clause (ii) of this sentence), request that the Master Servicer make such
Servicing Advance, such request to be made in writing and confirmed by both
parties and in a timely manner that does not materially and adversely affect the
interests of any Certificateholder, and accompanied by sufficient information
for the Master Servicer to make recoverability determinations, and at least ten
Business Days prior to the date on which failure to make such Servicing Advance
would (with notice from the Trustee regardless of whether such notice is
actually received) constitute an Event of Default pursuant to Section
7.01(a)(v); provided, however, the Special Servicer (with respect to Specially
Serviced Loans and REO Properties) is allowed but not required to make any
Servicing Advance that it fails to timely request the Master Servicer to make.
Subject to the following paragraph, the Master Servicer shall have the
obligation to make any such Servicing Advance that it is requested by the
Special Servicer to make within five Business Days of the Master Servicer's
receipt of such request and such information and documents as are reasonably
necessary for the Master Servicer to make such Servicing Advance and to
determine recoverability. The Master Servicer shall be entitled to reimbursement
for any Servicing Advance made by it at the direction of the Special Servicer,
together with Advance Interest thereon, at the same time, in the same manner and
to the same extent as the Master Servicer is entitled with respect to any other
Servicing Advance made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(d)
or any other provision of this Agreement to the contrary, the Master Servicer
shall not be required to reimburse the Special Servicer for, or make at the
Special Servicer's direction, any Servicing Advance if the Master Servicer
determines in its reasonable, good faith judgment that the Servicing Advance
that the Special Servicer is directing the Master Servicer to reimburse it for
or make hereunder, although not characterized by the Special Servicer as a
Nonrecoverable Servicing Advance, is or would be, if made, a Nonrecoverable
Servicing Advance. The Master Servicer shall notify the Special Servicer and the
Trustee in writing of such determination. Such notice shall not obligate the
Special Servicer to make such Servicing Advance.
(e) The Master Servicer shall deliver to the Trustee for deposit
into the Distribution Account by 1:30 p.m. (New York City time) on each Master
Servicer Remittance Date, without any right of reimbursement therefor, a cash
payment (a "Compensating Interest Payment") in an amount equal to the sum of (i)
the aggregate amount of Balloon Payment Interest Shortfalls, if any, incurred in
connection with Balloon Payments received in respect of the Mortgage Pool (other
than Mortgage Loans that are Specially Serviced Loans or Defaulted Loans) during
the most recently ended Collection Period, plus (ii) the lesser of (A) the
aggregate amount of Prepayment Interest Shortfalls, if any, incurred in
connection with Principal Prepayments received in respect of the Mortgage Pool
(other than Mortgage Loans that are Specially Serviced Loans or Defaulted Loans
and other than shortfalls arising in connection with the payment of insurance
proceeds or condemnation proceeds) during the most recently ended Collection
Period, and (B) the aggregate of (1) that portion of its Master Servicing Fees
for the related Collection Period that is, in the case of each and every Loan
and REO Loan for which such Master Servicing Fees are being paid in such
Collection Period, calculated at 0.01% per annum, and (2) all Prepayment
Interest Excesses received in respect of the Mortgage Pool during the most
recently ended Collection Period, plus (iii) in the event that any Principal
Prepayment was received on the last Business Day of the second most recently
ended Collection Period, but for any reason was not included as part of the
Master Servicer Remittance Amount for the preceding Master Servicer Remittance
Date (other than because of application of the subject Principal Prepayment in
accordance with Section 3.05(a) for another purpose), the total of all interest
and other income accrued or earned on the amount of such Principal Prepayment
while it is on deposit in the Certificate Account or, in the case of a Mortgage
Loan included in a Whole Loan, Section 3.05(f); provided, however, if a
Prepayment Interest Shortfall occurs as a result of the Master Servicer's
allowing the related Borrower to deviate from the terms of the related loan
documents regarding principal prepayments (other than (v) on a Specially
Serviced Loan, (w) a payment of insurance proceeds or condemnation proceeds, (x)
a payment subsequent to a default under the related loan documents (provided
that the Master Servicer reasonably believes that acceptance of such payment is
consistent with the Servicing Standard and has obtained the consent of the
Special Servicer), (y) pursuant to applicable law or a court order, or (z) at
the request or with the consent of the Directing Certificateholder), then, for
purposes of calculating the Compensating Interest Payment for the subject
Collection Period, the amount in clause (ii) of this paragraph shall be the
aggregate of (A) all Master Servicing Fees for such Collection Period and (B)
all Prepayment Interest Excesses and, to the extent earned on principal
prepayments, Net Investment Earnings received by the Master Servicer during such
Collection Period; and provided, further, the rights of the Certificateholders
to offset the aggregate Prepayment Interest Shortfalls shall not be cumulative.
(f) Except under the same circumstances that it would be
permitted to waive a prepayment lockout provision in the subject Serviced Loan
pursuant to Section 3.20(a), neither the Master Servicer nor the Special
Servicer shall consent to any Mortgagor's prepaying its Loan, partially or in
its entirety, if the Mortgagor would be prohibited from doing so without such
consent. In each case subject to the Servicing Standard and applicable law and
to the extent permitted by the related loan documents, the Master Servicer and
the Special Servicer agree not to accept any Principal Prepayments with respect
to any Serviced Loan on a date other than the then applicable due date therefor
except that the Special Servicer shall be permitted to accept Principal
Prepayments with the consent of the Directing Certificateholder.
(g) The Master Servicer shall not exercise any discretionary
right it has with respect to any Serviced Loan pursuant to the related Mortgage
Note or Mortgage to apply any amounts maintained as an escrow or reserve to the
principal balance of such Serviced Loan except in the case of a default
thereunder.
(h) The Master Servicer shall send written notice to each
Borrower 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 Agreement.
(i) In connection with each prepayment of principal received
hereunder, the Master Servicer shall calculate any applicable Prepayment Premium
under the terms of the related Mortgage Note. Promptly following its
determination thereof, the Master Servicer shall disclose to the Trustee its
calculation of any such Prepayment Premium.
(j) The Master Servicer shall, as to each Serviced Loan that is
secured by the interest of the related Mortgagor under a Ground Lease, promptly
(and in any event within 45 days) after the Closing Date notify the related
ground lessor of the transfer of such Serviced Loan to the Trust pursuant to
this Agreement and inform such ground lessor that any notices of default under
the related Ground Lease should thereafter be forwarded to the Master Servicer.
(k) Except as required under the loan documents, Mezzanine
Intercreditor Agreement or applicable law and subject to Section 3.21(f), the
Special Servicer shall not, without the consent of the Directing
Certificateholder, consent to the foreclosure of any Mezzanine Loan or to the
transfer of any Mezzanine Loan.
Section 3.20 Modifications, Waivers, Amendments and Consents.
(a) The Master Servicer (solely as to Performing Serviced Loans)
and the Special Servicer (as to Specially Serviced Loans) each may, consistent
with the Servicing Standard, agree to any modification, waiver or amendment of
any term of, forgive or defer the payment of interest (including, without
limitation, Default Interest) on and principal of, forgive late payment charges
and Prepayment Premiums on, permit the release, addition or substitution of
collateral securing, and/or permit the release of the Mortgagor on or any
guarantor of any Serviced Loan it is required to service and administer
hereunder without the consent of the Trustee or any Certificateholder, subject,
however, to Section 3.02, Section 3.08, Section 3.21 and Section 3.28 and each
of the following limitations, conditions and restrictions:
(i) other than as provided in Sections 2.03(b), 3.02, 3.08 and
3.20(f), the Master Servicer shall not agree to any modification, waiver
or amendment of any term of, or take any of the other acts referenced in
this Section 3.20(a) with respect to, any Serviced Loan, that would
affect the amount or timing of any related payment of principal, interest
or other amount payable under such Serviced Loan or affect the security
for such Serviced Loan, unless the Master Servicer has obtained the
consent of the Special Servicer (it being understood and agreed that (A)
the Master Servicer shall promptly provide the Special Servicer with
notice of any Mortgagor's request for such modification, waiver or
amendment, the Master Servicer's recommendations and analysis, and with
all information reasonably available to the Master Servicer that the
Special Servicer may reasonably request to withhold or grant any such
consent, each of which shall be provided reasonably promptly in
accordance with the Servicing Standard, (B) the Special Servicer shall
decide whether to withhold or grant such consent in accordance with the
Servicing Standard and (C) if any such request has not been expressly
responded to within ten Business Days (subject to any extensions of
applicable time periods required if the Special Servicer is required by
this Agreement to seek the consent of third parties) of the Special
Servicer's receipt from the Master Servicer of the Master Servicer's
recommendations and analysis and all information reasonably requested
thereby and reasonably available to the Master Servicer, as such time
period may be extended if the Special Servicer is required to seek the
consent of the Directing Certificateholder, the related Companion Loan
Holder or any Controlling Holder, as applicable, related to a Serviced
Whole Loan, any mezzanine lender, or the Rating Agencies, to make an
informed decision (or, if the Special Servicer did not request any
information, within ten Business Days from such notice), such consent
shall be deemed to have been granted);
(ii) Subject to the restrictions on extensions in Section
3.20(a)(iv) and (v), the Master Servicer may (with the consent of the
Directing Certificateholder, subject, however, to Section 3.21(f)) extend
the maturity date of any Mortgage Loan (including any Serviced Whole
Loan, if applicable) for up to six months (but not more than two such
extensions by the Master Servicer shall occur);
(iii) other than as provided in Sections 3.02 and 3.08, the
Special Servicer shall not agree to (or, in the case of a Performing
Serviced Loan, consent to the Master Servicer's agreeing to) any
modification, waiver or amendment of any term of, or take (or, in the
case of a Performing Serviced Loan, consent to the Master Servicer's
taking) any of the other acts referenced in this Section 3.20(a) with
respect to, any Serviced Loan that would affect the amount or timing of
any related payment of principal, interest or other amount payable
thereunder or, in the reasonable, good faith judgment of the Special
Servicer, would add to, release, substitute for, or otherwise alter a
material amount of the security for such Serviced Loan, unless a material
default on such Serviced Loan has occurred or, in the reasonable, good
faith judgment of the Special Servicer, a default in respect of payment
on such Serviced Loan is reasonably foreseeable, and such modification,
waiver, amendment or other action is reasonably likely to produce a
greater recovery to the Certificateholders, or if a Serviced Whole Loan
is affected, to the Certificateholders and the related Companion Loan
Holder (as a collective whole and, in the case of a Serviced Whole Loan
that is an A/B Whole Loan, taking into account the subordination of the
related Companion Loan) on a net present value basis than would
liquidation;
(iv) the Special Servicer shall not extend (or, in the case of a
Performing Serviced Loan, consent to the Master Servicer's extending) the
date on which any Balloon Payment is scheduled to be due on any Serviced
Loan to a date beyond the earliest of (A) two years prior to the Rated
Final Distribution Date and (B) if such Serviced Loan is secured by a
Mortgage solely or primarily on the related Mortgagor's leasehold
interest in the related Mortgaged Property, 20 years (or, to the extent
consistent with the Servicing Standard, giving due consideration to the
remaining term of the Ground Lease, ten years) prior to the end of the
then current term of the related Ground Lease (plus any unilateral
options to extend);
(v) neither the Master Servicer nor the Special Servicer shall
make or permit any modification, waiver or amendment of any term of, or
take any of the other acts referenced in this Section 3.20(a) with
respect to, any Serviced Loan that would result in an Adverse REMIC Event
with respect to either REMIC I or REMIC II;
(vi) subject to applicable law, the related loan documents and
the Servicing Standard, neither the Master Servicer nor the Special
Servicer shall permit any modification, waiver or amendment of any term
of any Serviced Loan unless all related fees and expenses are paid by the
related Mortgagor;
(vii) the Special Servicer shall not permit (or, in the case of a
Performing Serviced Loan, consent to the Master Servicer's permitting)
any Mortgagor to add or substitute any real estate collateral for its
Serviced Loan unless the Special Servicer shall have first determined in
its reasonable, good faith judgment, based upon a Phase I Environmental
Assessment (and any additional environmental testing that the Special
Servicer deems necessary and prudent) conducted by an Independent Person
who regularly conducts Phase I Environmental Assessments, at the expense
of the Mortgagor, that such additional or substitute collateral is in
compliance with applicable environmental laws and regulations and that
there are no circumstances or conditions present with respect to such new
collateral relating to the use, management or disposal of any Hazardous
Materials for which investigation, testing, monitoring, containment,
clean-up or remediation would be required under any then applicable
environmental laws or regulations; and
(viii) the Special Servicer shall not permit the release,
including in connection with a substitution contemplated by clause (vii)
of this Section 3.20(a), of any collateral securing an outstanding
Serviced Loan, except as provided in Section 3.09(d) or Section 3.26, or
except where a Serviced Loan (or, in the case of a Cross-Collateralized
Set, where such entire Cross-Collateralized Set) is satisfied, or except
in the case of a release where (A) either (1) the use of the collateral
to be released will not, in the good faith and reasonable judgment of the
Special Servicer, materially and adversely affect the net operating
income being generated by or the use of the related Mortgaged Property,
or (2) there is a corresponding principal pay down of such Serviced Loan
in an amount at least equal to the appraised value of the collateral to
be released (or substitute collateral with an appraised value at least
equal to that of the collateral to be released, is delivered), (B) the
remaining Mortgaged Property (together with any substitute collateral)
is, in the Special Servicer's good faith and reasonable judgment,
adequate security for the remaining Serviced Loan and (C) such release
would not, in and of itself, result in an Adverse Rating Event with
respect to any Class of Rated Certificates or Companion Loan Securities
(as confirmed in writing to the Trustee by each Rating Agency);
provided that the limitations, conditions and restrictions set forth in clauses
(i) through (viii) of this Section 3.20(a)shall not apply to any act or event
(including, without limitation, a release, substitution or addition of
collateral) in respect of any Serviced Loan that either occurs automatically, or
results from the exercise of a unilateral option by the related Mortgagor within
the meaning of Treasury Regulations Section 1.1001-3(c)(2)(iii), in any event
under the terms of such Serviced Loan in effect on the Closing Date (or, in the
case of a Replacement Mortgage Loan, on the related date of substitution); and
provided, further, notwithstanding clauses (i) through (viii) of this Section
3.20(a), neither the Master Servicer nor the Special Servicer shall be required
to oppose the confirmation of a plan in any bankruptcy or similar proceeding
involving a Mortgagor if, in its reasonable, good faith judgment, such
opposition would not ultimately prevent the confirmation of such plan or one
substantially similar; and provided, further, notwithstanding clause (viii) of
this Section 3.20(a), neither the Master Servicer nor the Special Servicer shall
be required to obtain any confirmation of the Certificate ratings from the
Rating Agencies to grant, or to subordinate the lien of Loans to, easements,
rights-of-way or similar agreements that do not materially affect the use or
value of a Mortgaged Property or the Mortgagor's ability to make any payments
with respect to the related Loan.
(b) Neither the Master Servicer nor the Special Servicer shall
have any liability to the Trust, the Certificateholders and in the case of a
Serviced Whole Loan, the related Companion Loan Holder or any other Person if
its analysis and determination that the modification, waiver, amendment or other
action contemplated by Section 3.20(a) is reasonably likely to produce a greater
recovery to Certificateholders, or if a Serviced Whole Loan is affected, to the
Certificateholders and the related Companion Loan Holder (as a collective whole
and, in the case of a Serviced Whole Loan that is an A/B Whole Loan, taking into
account the subordination of the related Companion Loan) on a net present value
basis than would liquidation, should prove to be wrong or incorrect, so long as
the analysis and determination were made on a reasonable basis by the Special
Servicer or the Master Servicer, as applicable, consistent with the Servicing
Standard. Each such determination shall be evidenced by an Officer's Certificate
to such effect to be delivered by the Special Servicer to the Trustee, the
Directing Certificateholder and the related Companion Loan Holder (if a Serviced
Whole Loan is involved). The Special Servicer shall include with any such
Officer's Certificate the supporting documentation forming the basis for its
conclusion.
(c) Any payment of interest that is deferred pursuant to Section
3.20(a) shall not, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Serviced Loan,
notwithstanding that the terms of such Serviced Loan so permit or that such
interest may actually be capitalized.
(d) The Master Servicer (as to Performing Serviced Loans) and the
Special Servicer (as to Specially Serviced Loans) each may, as a condition to
its granting any request by a Mortgagor for consent, modification, waiver or
indulgence or any other matter or thing, the granting of which is within the
Master Servicer's or Special Servicer's, as the case may be, discretion pursuant
to the terms of the instruments evidencing or securing the related Serviced Loan
and is permitted by the terms of this Agreement, require that such Mortgagor pay
to it, as additional servicing compensation, a reasonable fee relating to such
consent, modification, waiver or indulgence (not to exceed 1.0% of the unpaid
principal balance of the related Serviced Loan) for the additional services
performed in connection with such request, together with any related costs and
expenses incurred by it; provided that the charging of such fees would not
otherwise constitute a "significant modification" of the Serviced Loan pursuant
to Treasury Regulations Section 1.860G-2(b). All such fees collected by the
Master Servicer and/or the Special Servicer shall be allocable between such
parties, as Additional Master Servicing Compensation and Additional Special
Servicing Compensation, respectively, as provided in Section 3.11.
(e) All modifications, waivers, amendments and other actions
entered into or taken in respect of the Serviced Loans pursuant to the preceding
subsections of this Section 3.20 shall be in writing. Each of the Master
Servicer and the Special Servicer shall notify the other such party, the
Trustee, the Directing Certificateholder and the related Companion Loan Holder
(if a Serviced Whole Loan is involved), in writing, of any modification, waiver,
amendment or other action entered into or taken in respect of any Serviced Loan
pursuant to this Section 3.20 and the date thereof, and shall deliver to the
Trustee or the related Custodian for deposit into the related Mortgage File
(with a copy to the other such party), an original counterpart of the agreement
relating to such modification, waiver, amendment or other action, promptly (and
in any event within ten Business Days) following the execution thereof. In
addition, following the execution of any modification, waiver or amendment
agreed to by the Special Servicer pursuant to Section 3.20(a), the Special
Servicer shall deliver to the Master Servicer and the Trustee an Officer's
Certificate setting forth in reasonable detail the basis of the determination
made by it pursuant to clause (ii) of Section 3.20(a).
(f) [RESERVED].
(g) The Master Servicer shall not be required to seek the consent
of the Special Servicer or any Certificateholder or obtain any confirmation of
the Certificate ratings or Companion Loan Securities ratings from the Rating
Agencies (unless otherwise set forth in the related Intercreditor Agreement with
respect to a Serviced Whole Loan) to approve the following modifications,
waivers or amendments of the Loans: (i) waivers of minor covenant defaults
(other than financial covenants), including late financial statements; (ii)
releases of (A) non-material parcels of a Mortgaged Property, including in
connection with a pending or threatened condemnation; (B) parcels of a Mortgaged
Property not given any value in the underwriting of the Loan; or (C) similar
non-material parcels of a Mortgaged Property; (iii) grant, or subordinate the
lien of Loans to, easements, rights-of-way or similar agreements that do not
materially affect the use or value of a Mortgaged Property or the Mortgagor's
ability to make any payments with respect to the related Loan; and (iv) other
routine approvals, including the granting of subordination, non-disturbance and
attornment agreements and leasing consents, typically performed by a Master
Servicer on a routine basis.
(h) In connection with granting an extension of the maturity date
of any Serviced Loan in accordance with Section 3.20(a), the Special Servicer,
in the case of a Specially Serviced Loan, and the Master Servicer, in the case
of a Performing Serviced Loan, shall each cause the related Mortgagor to agree,
if it has not already done so pursuant to the existing loan documents, to
thereafter deliver to the Special Servicer, the Trustee, the Directing
Certificateholder and the related Companion Loan Holder (if a Serviced Whole
Loan is involved) audited operating statements on a quarterly basis with respect
to the related Mortgaged Property, provided that the Special Servicer or the
Master Servicer, as the case may be, may, in its sole discretion, waive the
requirement that such statements be audited.
(i) If the Master Servicer or the Special Servicer collects a
modification fee or a modification application fee in connection with a
modification or proposed modification of a Serviced Loan, then the Master
Servicer or the Special Servicer, as applicable, will apply that fee to cover
the costs and expenses associated with that modification or proposed
modification that are not otherwise paid by the related Mortgagor and that would
otherwise be payable or reimbursable out of the Trust Fund, including any Rating
Agency fees and expenses. Any remaining portion of such modification fee (such
remaining portion, a "Net Modification Fee") or of such modification application
fee (such remaining portion, a "Net Modification Application Fee") will be
applied as additional compensation to the Master Servicer or the Special
Servicer in accordance with Section 3.11.
Section 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping; Asset Status Report; Directing
Certificateholder.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Loan, the Master Servicer shall immediately give notice
thereof to the Directing Certificateholder and the related Companion Loan Holder
(if a Serviced Whole Loan is involved), and deliver the related Servicing File
to the Special Servicer and shall use its best efforts to provide the Special
Servicer with all information, documents (or copies thereof) and records
(including records stored electronically on computer tapes, magnetic discs and
the like) relating to the Serviced Loan and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto
without acting through a Sub-Servicer. Notwithstanding anything in Section
2.01(b) or any other provision of this Agreement to the contrary, the copying
and delivery of such documents, instruments, items, records and information
shall not be at the expense of the Special Servicer. At its option, although its
Sub-Servicing Agreement is temporarily suspended, the related Sub-Servicer,
without any compensation therefor (unless otherwise stated in the related
Sub-Servicing Agreement), may retain Loans on its computer systems while such
Loans are Specially Serviced Loans, provided that no Sub-Servicer shall take any
action with respect thereto so long as such Loan is a Specially Serviced
Loan(unless otherwise stated in the related Sub-Servicing Agreement) and
provided that the Master Servicer shall assume all the Master Servicing duties
with respect to that Loan as provided in the second succeeding paragraph. The
Master Servicer shall use its best efforts to comply with the third preceding
sentence within five Business Days of the occurrence of each related Servicing
Transfer Event. The Master Servicer shall deliver to each Holder of a
Non-Registered Certificate (except a Class R-I or Class R-II Certificate) that
shall have requested a copy of any such notice a copy of the notice of such
Servicing Transfer Event provided by the Master Servicer to the Special Servicer
pursuant to this Section 3.21. No later than ten Business Days before the Master
Servicer is required to deliver a copy of the related Servicing File to the
Special Servicer, it shall review the Servicing File and request from the
Trustee any material documents that it is aware are missing from the Servicing
File. If the related Sub-Servicer elects not to retain Specially Serviced Loans
on its computer systems, then such Sub-Servicer shall return all Mortgage Files
to the Master Servicer.
Upon determining that a Specially Serviced Loan has become a
Corrected Serviced Loan, the Special Servicer shall promptly give notice thereof
to the Master Servicer and to the Directing Certificateholder and the related
Companion Loan Holder (if a Serviced Whole Loan is involved), and return the
related Servicing File to the Master Servicer within five Business Days and upon
giving such notice and returning such Servicing File, to the Master Servicer,
the Special Servicer's obligation to service such Loan, and the Special
Servicer's right to receive the Special Servicing Fee with respect to such Loan,
shall terminate, and the obligations of the Master Servicer to service and
administer such Loan shall resume.
Notwithstanding other provisions in this Agreement to the
contrary, the Master Servicer shall remain responsible for the accounting, data
collection, reporting and other basic Master Servicer administrative functions
with respect to the Specially Serviced Loans, provided that the Master Servicer
shall establish reasonable procedures as to the application of Special Servicer
receipts and tendered payments, and the Special Servicer shall have the
exclusive responsibility for and authority over all contacts (including
collection, which information shall be provided by the Master Servicer) with and
notices to Mortgagors and similar matters relating to each Specially Serviced
Loan and the related Mortgaged Property.
Also notwithstanding anything herein to the contrary, in
connection with the transfer to the Special Servicer of the servicing, subject
to Section 2.03, of a Cross-Collateralized Mortgage Loan as a result of a
Servicing Transfer Event or the reassumption of servicing responsibilities by
the Master Servicer with respect to any such Serviced Loan upon its becoming a
Corrected Serviced Loan, the Master Servicer and the Special Servicer shall each
transfer to the other, as and when applicable, the servicing of all other
Cross-Collateralized Mortgage Loans constituting part of the same
Cross-Collateralized Set; provided that no Cross-Collateralized Mortgage Loan
may become a Corrected Serviced Loan at any time that a continuing Servicing
Transfer Event exists with respect to another Cross-Collateralized Mortgage Loan
in the same Cross-Collateralized Set.
(b) In servicing any Specially Serviced Loans, the Special
Servicer shall provide to the Trustee the originals, of documents contemplated
by the definition of "Mortgage File" and generated while such Serviced Loan is a
Specially Serviced Loan, for inclusion in the related Mortgage File (with a copy
of each such original to the Master Servicer), and provide to the Master
Servicer copies of any additional related Serviced Loan information, including
correspondence with the related Mortgagor generated while such Serviced Loan is
a Specially Serviced Loan.
(c) Notwithstanding anything in this Agreement to the contrary,
in the event that the Master Servicer and the Special Servicer are the same
Person, all notices, certificates, information, consents and documents required
to be given or delivered by the Master Servicer to the Special Servicer or vice
versa shall be deemed to be given or delivered, as the case may be, without the
necessity of any action on such Person's part.
(d) No later than 45 days after the date the servicing of a
Serviced Loan is transferred from the Master Servicer to the Special Servicer
pursuant to the terms of this Agreement, the Special Servicer shall deliver to
each Rating Agency, the Master Servicer, the Trustee, the related Companion Loan
Holder (if a Serviced Whole Loan is involved), and the Directing
Certificateholder a report (the "Asset Status Report") with respect to such
Serviced Loan and the related Mortgaged Property. Such Asset Status Report shall
set forth the following information to the extent reasonably determinable:
(i) a summary of the status of such Specially Serviced Loan and
any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer (including without limitation by
reason of any Phase I Environmental Assessment and any additional
environmental testing contemplated by Section 3.09), consistent with the
Servicing Standard, that are applicable to the exercise of remedies set
forth herein and to the enforcement of any related guaranties or other
collateral for the related Serviced Loan and whether outside legal
counsel has been retained;
(iii) the most current rent roll and income or operating
statement available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Loan might be returned to performing status and returned to the
Master Servicer for regular servicing or otherwise realized upon;
(v) the Appraised Value of the Mortgaged Property together with
the assumptions used in the calculation thereof (which the Special
Servicer may satisfy by providing a copy of the last obtained Appraisal);
and
(vi) such other information as the Special Servicer deems
relevant in light of the Servicing Standard.
If within ten Business Days of receiving an Asset Status Report,
the Directing Certificateholder (except with respect to an A/B Whole Loan) or
the related Controlling Holder (if an A/B Whole Loan is involved), does not
disapprove such Asset Status Report in writing, the Special Servicer shall
implement the recommended action as outlined in such Asset Status Report;
provided, however, the Special Servicer may not take any action that is contrary
to applicable law, the Servicing Standard or the terms of the applicable loan
documents; provided, further if the Special Servicer determines that the failure
to take any action set forth in such Asset Status Report would violate the
Servicing Standard, the Special Servicer may implement the recommended action
outlined in such Asset Status Report without waiting for the Directing
Certificateholder's or the related Controlling Holder's (if an A/B Whole Loan is
involved) response. If the Directing Certificateholder or the related
Controlling Holder (if an A/B Whole Loan is involved) disapproves such Asset
Status Report, the Special Servicer will revise such Asset Status Report and
deliver to the Directing Certificateholder or the related Controlling Holder (if
an A/B Whole Loan is involved), the Rating Agencies, the Trustee and the Master
Servicer a new Asset Status Report as soon as practicable, but no later than 30
days after such disapproval. The Special Servicer shall revise such Asset Status
Report as described above in this Section 3.21(d) until the earlier of (x) the
delivery by the Directing Certificateholder or the related Controlling Holder
(if an A/B Whole Loan is involved), as applicable, of an affirmative approval in
writing of such revised Asset Status Report, (y) the failure of the Directing
Certificateholder or the related Controlling Holder(if an A/B Whole Loan is
involved), as applicable, to disapprove such revised Asset Status Report in
writing within ten Business Days of its receipt thereof; or (z) the passage of
90 days from the date of preparation of the initial version of the Asset Status
Report. Following the earliest of such events, and subject to the terms of
Section 3.20, the Special Servicer shall implement the recommended action as
outlined in the most recent version of such Asset Status Report (provided that
the Special Servicer shall not take any action that is contrary to applicable
law or the terms of the applicable loan documents or that violates the Servicing
Standard or fail to take any action, if the failure to take such action would
violate the Servicing Standard). The Special Servicer may, from time to time,
modify any Asset Status Report it has previously delivered and implement the new
action in such revised report so long as such revised report has been prepared,
reviewed and either approved or not rejected as provided above. For the
avoidance of doubt, any action to be taken (or not taken) by the Special
Servicer with respect to an Asset Status Report must be in all respects
consistent with the Servicing Standard and applicable law. The Special Servicer
shall have the authority to meet with the Mortgagor for any Specially Serviced
Loan and take such actions consistent with the Servicing Standard and the
related Asset Status Report. The Special Servicer shall not take any action
inconsistent with the related Asset Status Report, unless such action would be
required to act in accordance with the Servicing Standard.
(e) The Special Servicer or the Master Servicer, as applicable,
shall provide the Directing Certificateholder and the related Controlling Holder
(if an A/B Whole Loan is involved), as applicable, with not less than ten
Business Days' prior notice (except as provided in Section 3.08(a)) of any
Special Action (as described below) that the Special Servicer or the Master
Servicer, as applicable, proposes to take and, in the case of the Special Action
described in clause (vi) in this Section 3.21(e), the Special Servicer shall
also contemporaneously notify the Master Servicer; provided, however, if a
shorter period of notice is necessary to avoid the occurrence of an Adverse
REMIC Event or a violation of Section 3.21(f), then the required period of
notice shall be such shorter period.
The Directing Certificateholder (except with respect to any A/B
Whole Loan) or the related Controlling Holder (if an A/B Whole Loan is
involved), as applicable, shall be entitled to advise the Special Servicer with
respect to any Special Action, and notwithstanding anything to the contrary
contained herein, the Special Servicer shall not take any Special Action or
consent to the taking of any Special Action if the Directing Certificateholder
(except with respect to any A/B Whole Loan) or the related Controlling Holder
(if an A/B Whole Loan is involved), as applicable, has objected thereto by the
close of business on the tenth Business Day following its receipt of notice
thereof, or if a shorter period was necessitated in accordance with the
preceding sentence, by the close of business on the date on which such shorter
period expires (it being understood that the failure of the Directing
Certificateholder (except with respect to any A/B Whole Loan) or the related
Controlling Holder (if an A/B Whole Loan is involved), as applicable, to respond
in the time frame set forth in the Approval Provisions shall be deemed to
constitute such party's approval of such action); provided, however, that (i)
the ability of the Directing Certificateholder (except with respect to any A/B
Whole Loan) or the related Controlling Holder (if an A/B Whole Loan is
involved), as applicable, to so advise or object shall in all events be subject
to Section 3.21(f) and shall not violate the provisions of the Mezzanine
Intercreditor Agreement (with respect to any Mortgage Loan with a related
Mezzanine Loan), (ii) the Master Servicer or the Special Servicer, as
applicable, shall not follow any such advice or objection that would result in a
violation of this Agreement, including Section 3.21(f), the loan documents, any
Intercreditor Agreement or applicable laws or otherwise result in an Adverse
REMIC Event or violate the provisions of the Mezzanine Intercreditor Agreement
(with respect to any Mortgage Loan with a related Mezzanine Loan) and (iii) if
(a) the Directing Certificateholder or the related Controlling Holder (if an A/B
Whole Loan is involved), as applicable, (b) the Special Servicer or Master
Servicer, as applicable, together cannot agree within 10 Business Days upon a
course of action with respect to any Special Action, then the Special Servicer
or Master Servicer, as applicable, shall implement its proposed course of action
and (c) if the Master Servicer or the Special Servicer determines that immediate
action is necessary in accordance with the Servicing Standard, it may take such
action prior to the expiration of the ten Business Day period. Subject to the
foregoing, in connection with the implementation of any Special Action or the
extension of the maturity date of a Serviced Loan, the Master Servicer or
Special Servicer shall comply with the Approval Provisions, as applicable. For
purposes hereof, "Special Action" means each of the following actions:
(i) any proposed or actual foreclosure upon or comparable
conversion (which may include acquisitions of a REO Property) of the
ownership of properties securing such of the Specially Serviced Loans as
come into and continue in default;
(ii) any modification or waiver of a Serviced Loan;
(iii) any proposed or actual sale of a Defaulted Serviced Loan or
REO Property (other than in connection with the termination of the Trust
Fund or pursuant to Section 3.18);
(iv) any determination to bring a REO Property into compliance
with applicable environmental laws or to otherwise address Hazardous
Materials located at a REO Property;
(v) any acceptance of substitute or additional collateral for a
Serviced Loan unless the lender is required to accept such collateral by
the underlying loan documents and any release of the real estate
collateral securing the Serviced Loan (except as permitted by clause (ii)
of Section 3.20(g));
(vi) any waiver of a "due-on-sale" clause (except as set forth in
Section 3.08(a)) or "due-on-encumbrance" clause;
(vii) any acceptance or approval of acceptance or consent to
acceptance of an assumption agreement releasing a borrower from liability
under a Serviced Loan (except as set forth in Section 3.08(a));
(viii) any acceptance of a discounted payoff of a Serviced Loan;
(ix) any release of earnout reserve funds (other than as
expressly required, with no lender discretion and/or is automatic, under
the related loan documents);
(x) the release of any letters of credit (other than as expressly
required, with no lender discretion and/or is automatic, under the
related loan documents);
(xi) any approval of a material lease (in excess of 20% of the
leasable space) (other than as expressly required, with no lender
discretion and/or is automatic, under the related loan documents); or
(xii) any change in property manager or franchise (other than as
expressly required, with no lender discretion and/or is automatic, under
the related loan documents).
(f) Notwithstanding anything contained in this Agreement to the
contrary, (i) no objection, failure to approve or direction of the Directing
Certificateholder or the related Controlling Holder (if an A/B Whole Loan is
involved), as applicable, shall (A) require or cause the Master Servicer or the
Special Servicer, as applicable, to violate the terms of any Loan then serviced
by it, applicable law or any provision of this Agreement, including the Master
Servicer's obligation or the Special Servicer's obligation to act in accordance
with the Servicing Standard and to maintain the REMIC status of each of REMIC I
and REMIC II, or (B) result in the imposition of a "prohibited transaction" or
"prohibited contribution" tax under the REMIC Provisions, or (C) expose the
Master Servicer, the Special Servicer, the Depositor, the Trust Fund, the
Trustee or their officers, directors, employees or agents to any claim, suit or
liability, or (D) materially expand the scope of the Special Servicer's or the
Master Servicer's responsibilities under this Agreement (the "Prohibited
Actions"), and (ii) in no event shall the Master Servicer or the Special
Servicer take any action or refrain from taking any action if the taking of such
action or the refraining from taking of such action would violate the Servicing
Standard or the REMIC Provisions. The Master Servicer or Special Servicer, as
applicable, shall disregard any such direction, failure to approve or objection.
The Directing Certificateholder shall have no liability to the
Certificateholders (other than the holders of the Controlling Class) and the
related Controlling Holder (if an A/B Whole Loan is involved) shall have no
liability to the Certificateholders (including the holders of the Controlling
Class) for any action taken, or for refraining from the taking of any action,
pursuant to this Agreement, or for errors in judgment; provided, however, the
Directing Certificateholder or the related Controlling Holder (if an A/B Whole
Loan is involved), as applicable, will not be protected against any liability to
any Holder of the Controlling Class would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of reckless disregard of obligations or duties. By its acceptance of a
Certificate, each Certificateholder confirms its understanding that the
Directing Certificateholder or the related Controlling Holder (if an A/B Whole
Loan is involved), as applicable, may take actions that favor the interests of
one or more Classes of the Certificates over other Classes of the Certificates,
and that the Directing Certificateholder or the related Controlling Holder (if
an A/B Whole Loan is involved), as applicable, may have special relationships
and interests that conflict with those of Holders of some Classes of the
Certificates, that the Directing Certificateholder or the related Controlling
Holder (if an A/B Whole Loan is involved), as applicable, may act solely in the
interests of the Holders of the Controlling Class, that none of the Directing
Certificateholder or any Controlling Holder (if an A/B Whole Loan is involved),
as applicable, has any duties to the Holders of any Class of Certificates other
than the Controlling Class, that none of the Directing Certificateholder or any
Controlling Holder (if a Whole Loan is involved), as applicable, shall be deemed
to have been negligent or reckless, or to have acted in bad faith or engaged in
willful misfeasance, by reason of its having acted solely in the interests of
the holders of the Controlling Class that none of the Directing
Certificateholder or any Controlling Holder (if an A/B Whole Loan is involved),
as applicable, shall have any liability whatsoever for having so acted, and no
Certificateholder may take any action whatsoever against the Directing
Certificateholder or any Controlling Holder (if an A/B Whole Loan is involved),
as applicable, or any director, officer, employee, agent or principal thereof
for having so acted.
(g) With respect to each Serviced Whole Loan, notwithstanding
anything to the contrary contained herein (but subject to Section 3.21(f)) and
the related Intercreditor Agreement): (i) the Special Servicer shall be required
to consult with the related Controlling Holder upon the occurrence of any event
of default under such Serviced Whole Loan, to consider alternative actions
recommended by such Controlling Holder and to consult with such Controlling
Holder with respect to determinations made pursuant to Section 3.09 or Section
3.18 and (ii) at any time (whether or not any event of default under such
Serviced Whole Loan has occurred) the Master Servicer and the Special Servicer
shall be required to consult with such Controlling Holder to the extent that the
related loan documents grant the lender the right to approve budgets for the
related Mortgaged Property, prior to approving any such budget.
(h) In connection with any proposed Special Action, the Special
Servicer shall prepare a summary of such proposed Special Action and an analysis
of whether or not such Special Action is reasonably likely to produce a greater
recovery on a present value basis than not taking such action or making such
determination and shall provide to the Directing Certificateholder or the
related Controlling Holder, as applicable, such summary and such information as
is in its possession or control and is reasonably requested by the Directing
Certificateholder or the related Controlling Holder, as applicable, as may be
necessary in the reasonable judgment of the Directing Certificateholder or the
related Controlling Holder, as applicable, in order to make a determination with
respect to such Special Action.
The Master Servicer or Special Servicer shall provide to the
Directing Certificateholder or the related Controlling Holder, as applicable, by
hard copy or by electronic means concurrently with the delivery thereof to the
related Borrower, copies of any notice of an event of default under the related
loan documents and any other notices sent to such Borrower with respect to
foreclosure or other exercise of remedies or enforcement, modification or waiver
with respect to the related Mortgage Loan or the related Mortgaged Property.
The Master Servicer or the Special Servicer shall also provide to
the Directing Certificateholder or the related Controlling Holder, as
applicable, by hard copy, electronic means or by other means agreed to by the
Directing Certificateholder or such Controlling Holder, as applicable, and the
Master Servicer or the Special Servicer (A) within 30 days of receipt thereof,
copies of any financial statements, certificates, correspondence, notices, bills
or reports with respect to the related Borrower or Mortgaged Property that were
delivered pursuant to, or to which the mortgagee or lender would be entitled to
under, the terms of the related loan documents, (B) within 30 days following the
receipt thereof by the Master Servicer or the Special Servicer monthly operating
statements and rent rolls for the related Mortgaged Property and (C) within 30
days following the receipt thereof by the Master Servicer or the Special
Servicer annual operating statements and rent rolls for the related Mortgaged
Property.
The expense of providing information (except for any notice of an
event of default) and summaries pursuant to this Section 3.21(h) shall be an
expense of the Directing Certificateholder or the related Controlling Holder, as
applicable, and shall not be an expense of the Trust Fund.
Section 3.22 Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer (in the case of
the Special Servicer, with the consent of the Directing Certificateholder) may
each enter into Sub-Servicing Agreements to provide for the performance by third
parties of any or all of its obligations hereunder, provided that, in each case,
the Sub-Servicing Agreement: (i) insofar as it affects the Trust and the related
Companion Loan Holder (in the case of a Pari Passu Whole Loan) or the related
Controlling Holder (in the case of an A/B Whole Loan), as applicable, is
consistent with this Agreement in all material respects; (ii) expressly or
effectively provides that if the Master Servicer or Special Servicer, as the
case may be, shall for any reason no longer act in such capacity hereunder
(including, without limitation, by reason of an Event of Default), any successor
to the Master Servicer or the Special Servicer, as the case may be, hereunder
(including the Trustee if the Trustee has become such successor pursuant to
Section 7.02) may thereupon either assume all of the rights and, except to the
extent they arose prior to the date of assumption, obligations of the Master
Servicer or Special Servicer, as the case may be, under such agreement or,
except with respect to those Sub-Servicing Agreements listed on Schedule II and
subject to the provisions of Section 3.22(d), terminate such rights and
obligations; (iii) in the case of a Sub-Servicing Agreement entered into by the
Master Servicer, expressly or effectively provides that such agreement shall be
suspended as to servicing actions with respect to any Serviced Loan serviced
thereunder at the time such Serviced Loan becomes a Specially Serviced Loan
unless such Serviced Loan is then sub-serviced by Midland Loan Services, Inc. or
its permitted successors and assigns pursuant to such Sub-Servicing Agreement
(but only until such time as such Serviced Loan becomes a Corrected Serviced
Loan); (iv) in the case of a Sub-Servicing Agreement entered into by the Special
Servicer, relates only to Specially Serviced Loans or REO Properties and
expressly or effectively provides that such agreement shall terminate with
respect to any such Serviced Loan that becomes a Corrected Serviced Loan; (v) in
the case of a Sub-Servicing Agreement entered into by the Master Servicer,
provides that the related Sub-Servicer shall comply with all reasonable requests
for additional information made by the Master Servicer (provided, however, the
related Sub-Servicer shall not be required to furnish the same information to
the Master Servicer more than once) and, further, provides that the failure of
the related Sub-Servicer to furnish the Master Servicer on a timely basis with
any required reports, statements or other information, including without
limitation, the reports referred to in Section 3.12(a), either (A) shall permit
the Master Servicer to make necessary inquiries of the related borrower directly
or (B) shall (subject to a cure period not to exceed 60 days) constitute an
event of default thereunder for which the Master Servicer may terminate such
Sub-Servicer without payment of any termination fee (it being understood that
notwithstanding anything to the contrary in this clause (v), the obligations of
a Sub-Servicer in respect of Section 3.12(b) may be limited to the provision of
reports as agreed between the Master Servicer and such Sub-Servicer and response
to reasonable inquiries from the Master Servicer with respect thereto); (vi)
subject to Section 3.08 and Section 3.20(g), does not authorize any Sub-Servicer
to approve a modification or assumption of any Serviced Loan without the
approval of the Master Servicer, in the case of Performing Serviced Loans or of
the Special Servicer, in the case of Specially Serviced Loans or authorizes the
Sub-Servicer to foreclose any Serviced Loan without the approval of the Special
Servicer; (vii) imposes no liability whatsoever on the Trustee or the
Certificateholders, the related Companion Loan Holder (in the case of a Pari
Passu Whole Loan) or the related Controlling Holder (in the case of an A/B Whole
Loan), with respect to anything contained therein (provided, that nothing herein
shall preclude the Master Servicer or the Special Servicer from seeking any
indemnification that it would be otherwise entitled to under this Agreement);
(viii) provides that the Master Servicer and the Special Servicer each shall pay
the fees of any Sub-Servicer retained by it in accordance with the respective
Sub-Servicing Agreement and, in any event, from its own funds; and (ix) contain
events of default materially similar to an Event of Default hereunder for the
Master Servicer and/or the Special Servicer, as the case may be. References in
this Agreement to actions taken or to be taken by the Master Servicer or the
Special Servicer, as the case may be, include actions taken or to be taken by a
Sub-Servicer on behalf of the Master Servicer or the Special Servicer, as the
case may be; and, in connection therewith, all amounts advanced by any
Sub-Servicer to satisfy the obligations of the Master Servicer hereunder to make
Advances shall be deemed to have been advanced by the Master Servicer out of its
own funds and, accordingly, such Advances shall be recoverable by such
Sub-Servicer in the same manner and out of the same funds as if such
Sub-Servicer were the Master Servicer, and, for so long as they are outstanding,
such Advances shall accrue interest in accordance with Section 3.11(g) and/or
Section 4.03(d), such interest to be allocable between the Master Servicer and
such Sub-Servicer as they may agree. For purposes of this Agreement, the Master
Servicer and the Special Servicer each shall be deemed to have received any
payment when a Sub-Servicer retained by it receives such payment. The Master
Servicer and the Special Servicer each shall notify the other such party, the
Trustee, the related Companion Loan Holder (in the case of a Pari Passu Whole
Loan), the related Controlling Holder (in the case of an A/B Whole Loan) and the
Depositor in writing promptly of the appointment by it of any Sub-Servicer, and
shall deliver to the Trustee copies of all Sub-Servicing Agreements, and any
amendments thereto and modifications thereof, entered into by it promptly upon
its execution and delivery of such documents.
(b) Each Sub-Servicer actually performing servicing functions (i)
shall be authorized to transact business in the state or states in which the
Mortgaged Properties for the Serviced Loans it is to service are situated, if
and to the extent required by applicable law, and (ii) (other than Hypo Real
Estate Capital Corporation) to the extent sub-servicing multifamily loans, shall
be an approved conventional seller/servicer of multifamily mortgage loans for
Xxxxxxx Mac or Xxxxxx Mae or a HUD-Approved Servicer.
(c) The Master Servicer and the Special Servicer, for the benefit
of the Trustee and the Certificateholders, the related Companion Loan Holder (in
the case of a Pari Passu Whole Loan) and the related Controlling Holder (in the
case of an A/B Whole Loan) shall (at no expense to the Trustee, the
Certificateholders, the Trust, the related Companion Loan Holder (in the case of
a Pari Passu Whole Loan) or the related Controlling Holder (in the case of an
A/B Whole Loan) each monitor the performance and enforce the obligations of its
Sub-Servicers under the related Sub-Servicing Agreements. Such enforcement,
including, without limitation, the legal prosecution of claims, termination of
Sub-Servicing Agreements in accordance with their respective terms and the terms
of this Agreement, and the pursuit of other appropriate remedies, shall be in
such form and carried out to such an extent and at such time as the Master
Servicer or the Special Servicer, as the case may be, in its reasonable business
judgment, would require were it the owner of the Serviced Loans. Promptly upon
becoming aware of a default under any Sub-Servicing Agreement to which it is a
party, the Master Servicer or the Special Servicer, as the case may be, shall
notify each of the other parties hereto, the Trustee and the related Companion
Loan Holder (in the case of a Pari Passu Whole Loan) and the related Controlling
Holder (in the case of an A/B Whole Loan, and then the Trustee shall provide a
copy of such notice to the Directing Certificateholder, and, in accordance with
Section 8.12(b), shall, upon request, provide a copy of such notice to each
Holder of a Non-Registered Certificate (except a Class R-I or Class R-II
Certificate) of any such default.
(d) With respect to the Sub-Servicing Agreements in effect as of
the Closing Date that are listed on Schedule II, the initial Master Servicer
hereby agrees that it shall not, in its capacity as Master Servicer, terminate
any Sub-Servicer thereunder without cause. In the event of the resignation,
removal or other termination of the initial Master Servicer (or any successor
Master Servicer) hereunder for any reason, the successor to the initial Master
Servicer (or to such successor Master Servicer) shall elect, with respect to any
Sub-Servicing Agreement existing at the time of such termination (i) to assume
the rights and obligations of the predecessor Master Servicer under such
Sub-Servicing Agreement and continue the sub-servicing arrangements thereunder
on the same terms (including without limitation the obligation to pay the same
sub-servicing fees and other compensation), (ii) to enter into a new
Sub-Servicing Agreement with such Sub-Servicer and on such terms as the new
Master Servicer and such Sub-Servicer shall mutually agree (it being understood
that such Sub-Servicer is under no obligation to accept any such new
Sub-Servicing Agreement or to enter into or continue negotiations with the new
Master Servicer) or (iii) except with respect to those Sub-Servicing Agreements
listed on Schedule II, which may only be terminated for cause, to terminate such
Sub-Servicing Agreement without cause provided that such Sub-Servicing
Agreements have events of default that are similar to the Events of Default set
forth in Section 7.01 (however, the provisions of Section 7.01(a)(xiii) and
Section 7.01(a)(xv) shall not be an event of default with respect to Hypo Real
Estate Capital Corporation). Nothing in the foregoing provisions of this Section
3.22(d) shall limit the ability of the initial or a successor Master Servicer to
terminate a Sub-Servicer at any time for cause; provided, however, the parties
hereto understand and agree that the refusal or failure of a Sub-Servicer to
enter into or continue negotiations with a successor Master Servicer concerning
a new Sub-Servicing Agreement shall not constitute cause for termination.
References in this Section 3.22(d) to Master Servicer, successor Master Servicer
or subsequent successor Master Servicer shall mean the Trustee, if it is then
Master Servicer, successor Master Servicer or subsequent Master Servicer
pursuant to the operation of Section 7.02.
(e) In the event the Trustee or its designee assumes the rights
and obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement, the Master Servicer or the Special Servicer, as the
case may be, at its expense shall, upon request of the Trustee, deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Serviced Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use its best efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(f) Notwithstanding any Sub-Servicing Agreement, the Master
Servicer and the Special Servicer shall each remain obligated and liable to the
Trustee and the Certificateholders for the performance of its obligations and
duties under this Agreement in accordance with the provisions hereof to the same
extent and under the same terms and conditions as if it alone were servicing and
administering the Serviced Loans for which it is responsible.
(g) Notwithstanding anything to the contrary set forth herein,
any account established and maintained by a Sub-Servicer pursuant to a
Sub-Servicing Agreement with the Master Servicer shall for all purposes under
this Agreement be deemed to be an account established and maintained by the
Master Servicer.
(h) Each Sub-Servicer pursuant to its related Sub-Servicing
Agreement shall retain the original of any letter of credit that has been issued
in connection with any Serviced Loan that it sub-services pursuant to such
agreement on behalf of the Master Servicer for the benefit of the
Certificateholders provided that it shall provide a copy of such letter of
credit to the Master Servicer.
(i) The Master Servicer and the Special Servicer shall use
commercially reasonable efforts (including enforcement as such term is described
in Section 3.22(c)) to cause each Additional Servicer and/or Servicing Function
Participant with which it has entered into a servicing relationship with respect
to the Mortgage Loans to, forward a copy of each report or statement prepared by
such party pursuant to Section 11.09, 11.10 and/or 11.11 to the Rating Agencies
and the Directing Certificateholder (and the related Controlling Holder in the
case of an A/B Whole Loan).
Section 3.23 Designation of the Special Servicer by the Majority
Certificateholder of the Controlling Class or the Controlling Holder.
(a) The Majority Certificateholder of the Controlling Class may
at any time and from time to time terminate (with or without cause) and replace
any existing Special Servicer or any Special Servicer that has resigned or
otherwise ceased to serve as Special Servicer (other than with respect to any
A/B Whole Loan). Such Majority Certificateholder shall so designate a Person to
so serve by the delivery to the Trustee of a written notice stating such
designation. The Trustee shall, promptly after receiving any such notice, so
notify the Rating Agencies. The designated Person shall become the Special
Servicer as of the date the Trustee shall have received: (i) written
confirmation from each Rating Agency stating that if the designated Person were
to serve as Special Servicer hereunder, none of the then current ratings
assigned by such Rating Agency to the respective Classes of the Certificates
would be downgraded, qualified (if applicable) or withdrawn as a result thereof;
(ii) a written acceptance of all obligations of the Special Servicer under this
Agreement, executed by the designated Person; and (iii) an Opinion of Counsel
(at the expense of the Person designated to become the Special Servicer) to the
effect that the designation of such Person to serve as Special Servicer is in
compliance with this Section 3.23, that upon the execution and delivery of the
written acceptance referred to in the immediately preceding clause (ii), the
designated Person shall be bound by the terms of this Agreement and that this
Agreement shall be enforceable against the designated Person in accordance with
its terms. The existing Special Servicer shall be deemed to have resigned
simultaneously with such designated Person's becoming the Special Servicer
hereunder; provided, however, that (i) the terminated or resigned, as
applicable, Special Servicer shall continue to be entitled to receive all
amounts accrued or owing to it under this Agreement on or prior to the effective
date of such resignation, whether in respect of Servicing Advances or otherwise,
(ii) it shall be entitled to certain Workout Fees thereafter received to the
extent permitted by Section 3.11(c), and (iii) it and its directors, officers,
employees and agents shall continue to be entitled to the benefits of Section
6.03, notwithstanding any such termination or resignation. Such terminated
Special Servicer shall cooperate with the Trustee and the replacement Special
Servicer in effecting the termination of its responsibilities and rights
hereunder, including, without limitation, the transfer within two Business Days
to the replacement Special Servicer for administration by it of all cash amounts
that shall at the time be or should have been credited by the terminated Special
Servicer to the REO Account or delivered to the Master Servicer or that are
thereafter received by the terminated Special Servicer with respect to Specially
Serviced Loans and REO Properties and the execution and delivery of such
documents acknowledging its termination as Special Servicer as may be required
by any Rating Agency. The Majority Certificateholder of the Controlling Class
shall be responsible for paying any costs associated with such replacement,
including the reasonable costs of any servicing transfer.
(b) Solely with respect to A/B Whole Loans, the related
Controlling Holder shall be entitled to terminate the rights and obligations of
the Special Servicer under this Agreement with respect the related A/B Whole
Loan, with or without cause, upon ten Business Days notice to the Special
Servicer, the Master Servicer and the Trustee, and to appoint a successor
Special Servicer; provided, however, as evidenced in writing by each of the
Rating Agencies, the appointment of the proposed successor of the Special
Servicer will not, in and of itself, result in a downgrading, withdrawal or
qualification of the then current ratings provided by the Rating Agencies in
respect to any Class of Certificates. Except as provided in this Section
3.23(b), there shall not be more than two Special Servicers appointed under this
Agreement. No penalty or fee shall be payable to the Special Servicer with
respect to any termination pursuant to this Section 3.23(b). Such Controlling
Holder shall cause the Special Servicer to be reimbursed for the payment of any
outstanding reasonable out-of-pocket costs and expenses pursuant to the terms
hereof, which costs and expenses shall not be an expense of the Trust Fund and
shall be responsible for paying any costs associated with any such replacement
of the Special Servicer, including reasonable costs of any servicing transfer.
The successor Special Servicer shall notify the Depositor and the
Trustee of any appointment contemplated by this Section 3.23 at least two
Business Days prior to the effective date thereof and shall provide the
Depositor and the Trustee with all information reasonably requested by the
Depositor to comply with its reporting obligation under Item 6.02 of Form 8-K
not later than the effective date of such appointment.
The terminated Special Servicer (i) shall continue to be entitled
to receive all amounts accrued or owing to it under this Agreement on or prior
to the effective date of such termination, whether in respect of Servicing
Advances or otherwise, (ii) it shall be entitled to certain Workout Fees
thereafter received to the extent permitted by Section 3.11(c), and (iii) it and
its directors, officers, employees and agents shall continue to be entitled to
the benefits of Section 6.03, notwithstanding any such termination. Such
terminated Special Servicer shall cooperate with the Trustee and the replacement
Special Servicer in effecting the termination of its responsibilities and rights
hereunder, including, without limitation, the transfer within two Business Days
to the replacement Special Servicer for administration by it of all cash amounts
that shall at the time be or should have been credited by the terminated Special
Servicer to the REO Account or delivered to the Master Servicer or that are
thereafter received by the terminated Special Servicer with respect to Specially
Serviced Loans and REO Properties and the execution and delivery of such
documents acknowledging its termination as Special Servicer as may be required
by any Rating Agency.
Section 3.24 Confidentiality.
Subject to the terms of Section 3.19(a), the Master Servicer and
the Special Servicer will use reasonable efforts to keep confidential and not
disclose to any Person other than each other, the Depositor, the Trustee, a
Controlling Class Certificateholder, the Sub-Servicer (with respect to any
Serviced Loans it is sub-servicing), a Borrower (with respect to the related
Serviced Loan), any Certificateholder, the related Companion Loan Holder (in the
case of a Whole Loan) and the Rating Agencies, any information that it obtains
in its capacity as Master Servicer or Special Servicer with respect to the
Serviced Loans or any related Mortgagor including, without limitation, credit
information with respect to any such Mortgagor (collectively, "Confidential
Information"), except (i) any officers, directors and employees of the Master
Servicer or Special Servicer (or any officers, directors and employees of any
Affiliates of the Master Servicer or Special Servicer); (ii) auditors and
government regulators of the Master Servicer or the Special Servicer and any
agents, financial or tax advisors, attorneys, accountants and professional
consultants retained by the Master Servicer or the Special Servicer in
connection with the transactions contemplated by this Agreement that have been
informed of the confidential nature of the information provided to them; (iii)
each Mortgage Loan Seller with respect to information relating to the Loans
transferred into the Trust by such Mortgage Loan Seller; (iv) a potential
purchaser of servicing rights hereunder that has agreed to keep such information
confidential; (v) to the extent the Master Servicer or Special Servicer deems
such disclosure to be reasonably necessary in carrying out its duties pursuant
to this Agreement or any Sub-Servicing Agreement; (vi) to the extent such
information is publicly available or otherwise available from sources unrelated
to this transaction; (vii) to the extent such disclosure is required by law or
court order or is demanded pursuant to a subpoena; (viii) to the extent such
information is required to be delivered to third parties (including, without
limitation, property inspectors, tax service companies, insurance carriers, and
data systems vendors) in connection with the performance of the Master
Servicer's or the Special Servicer's obligations hereunder; or (ix) to the
extent the Depositor consents in writing to such disclosure. For purposes of
this paragraph, the terms "Master Servicer" and "Special Servicer" shall mean
the divisions or departments of such corporate entities involved in providing
services hereunder and their respective officers, directors and employees.
Notwithstanding anything in this Section 3.24 to the contrary, the Master
Servicer, and any Sub-Servicer with the prior written permission of the Master
Servicer, may disseminate pool-wide and general statistical information relating
to the Loans and the Loan portfolio being serviced (as to any Sub-Servicer,
limited to its own sub-serviced portfolio), so long as no Mortgagors are
identified.
Section 3.25 No Solicitation of Prepayments.
Neither the Master Servicer nor the Special Servicer shall
solicit or permit any Affiliate to solicit, either directly or indirectly,
prepayments from any Mortgagors under the Loans; provided, however, the
foregoing restriction shall not be interpreted to prohibit such solicitation by
a division or department of, or an Affiliate of, the Master Servicer or the
Special Servicer, or otherwise by a division or department of, or an Affiliate
of, the Master Servicer or the Special Servicer if such solicitation occurs
incidentally in the normal course of business and such solicitation is not
conducted, in whole or in part, (i) by an individual engaged at any time in
activities relating to the servicing of Loans or (ii) based upon or otherwise
with the benefit of information or documentation relating to the Certificates
obtained by or through the business unit within the Master Servicer or Special
Servicer responsible for servicing the Loans, including without limitation any
listing of the Loans or related Mortgagors or Mortgaged Properties. Each
Sub-Servicing Agreement shall contain a provision identical to the foregoing
with respect to the related Sub-Servicer.
Section 3.26 Certain Matters with Respect to Serviced Loans
Permitting Defeasance, Franchise Mortgage Loans and Certain Mortgage Loans
Permitting Additional Debt.
(a) With respect to each Serviced Loan as to which the Master
Servicer shall have the discretion pursuant to the terms thereof to require the
related Mortgagor to post defeasance collateral consisting of U.S. government
securities, within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i), in an amount sufficient to make all scheduled payments under
the Mortgage Note when due in lieu of making a permitted prepayment, the Master
Servicer shall so require defeasance; provided that the Master Servicer has
received an Opinion of Counsel that such defeasance complies with Treasury
Regulations Section 1.860G-2(a)(8). The Master Servicer may accept as defeasance
collateral any "government security," within the meaning of Treasury Regulations
Section 1.860G-2(a)(8)(i), notwithstanding any more restrictive requirements in
the Mortgage.
(b) The Master Servicer shall require, as a condition to the
exercise by the Mortgagor of any defeasance rights, that the Mortgagor pay any
costs and expenses associated with such exercise.
(c) To the extent that the terms of a Mortgage permit defeasance,
the Master Servicer shall require the related Mortgagor to deliver a
certification from the Mortgagor's independent certified public accountants as
to the sufficiency of the related U.S. government securities, and provide a copy
of such certification to each Rating Agency and the Directing Certificateholder.
(d) To the extent that the terms of a Mortgage permit defeasance,
the Master Servicer shall not approve the form and substance of any required
legal documents in connection with such defeasance unless (i) to the extent that
the outstanding principal balance of a Mortgage Loan is $35,000,000 or more, or
constitutes 5.0% or more of the then current principal balance of the Mortgage
Pool or such Mortgage Loan comprises at the time one of the ten largest Mortgage
Loans (by outstanding principal balance) in the Mortgage Pool, Fitch, Xxxxx'x
and S&P each shall have confirmed to it in writing that such defeasance will not
result in the withdrawal, downgrade or qualification (if applicable) of the
rating of any Class of Certificates or Companion Loan Securities, (ii) it shall
have obtained an Opinion of Counsel that the defeasance complies with applicable
REMIC Provisions; and, (iii) it shall have obtained an accountant's
certification that the defeasance collateral is sufficient to make payments
under the related Mortgage Loan for the remainder of its term. In the case of
the defeasance of any Mortgage Loan that does not require a Rating Agency
confirmation pursuant to the immediately preceding clause (i), the Master
Servicer must provide to S&P after completion of the defeasance a certification
substantially in the form of Exhibit J hereto.
(e) With respect to each Serviced Loan that provides for
defeasance, to the extent permitted by the terms of such Mortgage Loan, or if so
requested by the Rating Agencies, the Master Servicer shall use its best efforts
to have the related Mortgagor (i) designate a Single-Purpose-Entity (if the
borrower no longer complies) to assume the Mortgage Loan and own the collateral
and (ii) provide an opinion from counsel that the Trustee has a perfected
security interest in the new collateral.
(f) To the extent that (i) the outstanding principal balance of a
Mortgage Loan is $35,000,000 or more or constitutes 2.0% or more of the then
current principal balance of the Mortgage Pool or such Mortgage Loan comprises
at the time one of the ten largest Mortgage Loan (by outstanding principal
balance) in the Mortgage Pool, and (ii) the terms of the related loan documents
require the consent of the lender in order for the related Mortgagor to change
the manager of the related Mortgaged Property, the Master Servicer shall not so
consent to such a change in management unless it has received (a) the prior
consent of the Special Servicer, which will be deemed given if such party has
not responded within ten Business Days (as such period may be extended herein if
the consent of the Directing Certificateholder or the related Controlling Holder
(if an A/B Whole Loan is involved) is required hereunder) following delivery of
request for consent together with any information reasonably necessary to make a
decision and (b) a written confirmation from each Rating Agency such a change in
management, if effected, would not result in the withdrawal, downgrade or
qualification (if applicable) of the rating of any Class of Certificates or
Companion Loan Securities.
(g) Notwithstanding anything contained in this Section 3.26 the
Master Servicer will disregard any objection of the Directing Certificateholder
or any Controlling Holder (if an A/B Whole Loan is involved), as applicable,
that would result in a Prohibited Action.
Section 3.27 Application of Default Charges.
(a) Subject to the terms of any applicable Intercreditor
Agreement, any and all Default Charges that are actually received by or on
behalf of the Trust with respect to the Mortgage Pool, shall be applied for the
following purposes and in the following order, in each case to the extent of the
remaining portion of such Default Charges:
first, to pay to the Trustee, the Master Servicer or the Special
Servicer, in that order, any Advance Interest due and owing to such
party on outstanding Advances made thereby with respect to any Mortgage
Loan or REO Loan in the Mortgage Pool;
second, to reimburse the Trust for any Advance Interest paid to
the Trustee, the Master Servicer or the Special Servicer since the
Closing Date with respect to any Mortgage Loan or REO Loan in the
Mortgage Pool during the 12-month period preceding the receipt of such
Default Charges, which Advance Interest was paid from a source other
than Default Charges received on the Mortgage Pool;
third, to pay the Special Servicer for any Servicing Advances
made for the cost of an inspection made on a Specially Serviced Loan;
fourth, to reimburse the Trust for any other Additional Trust
Fund Expenses incurred with respect to any Mortgage Loan or REO Loan in
the Mortgage Pool during the 12-month period prior to the receipt of
such Default Charges, which expense was previously paid from a source
other than Default Charges received on the Mortgage Pool;
fifth, to pay the Master Servicer for Servicing Advances made for
the cost of an inspection made on a Loan other than a Specially Serviced
Loan; and
sixth, to pay any remaining portion of such Default Charges as
Additional Master Servicing Compensation to the Master Servicer, if such
Default Charges were collected with respect to a Performing Serviced
Loan, and otherwise to pay any remaining portion of such Default Charges
as Additional Special Servicing Compensation to the Special Servicer.
(b) Default Charges applied to reimburse the Trust pursuant to
either clause second or clause fourth of Section 3.27(a) is intended to be
available for distribution on the Certificates pursuant to Section 4.01(b),
subject to application pursuant to Section 3.05(a), Section 3.05(b), Section
3.05(c) or Section 3.05(f) for any items payable out of general collections on
the Mortgage Pool. Default Charges applied to reimburse the Trust pursuant to
either clause second or clause fourth of Section 3.27(a) shall be deemed to
offset payments of Advance Interest or other Additional Trust Fund Expenses
(depending on which clause is applicable) in the chronological order in which
they were made or incurred (whereupon such Advance Interest or other Additional
Trust Fund Expenses (depending on which clause is applicable) shall thereafter
be deemed to have been paid out of Default Charges).
(c) Subject to the terms of any applicable Intercreditor
Agreement, any and all Default Charges that are actually collected with respect
to any Companion Loan related to a Serviced Whole Loan or any successor REO Loan
with respect thereto during any Collection Period (as allocable thereto pursuant
to the related loan agreement), shall be applied for the following purposes and
in the following order, in each case to the extent of the remaining portion of
such Default Charges and net of any portion of such Default Charges, if any,
that are required to be paid to any Companion Loan Holder under any
Intercreditor Agreement and/or this Agreement:
first, to pay to the Trustee, the Master Servicer or the Special
Servicer, in that order, any Advance Interest due and owing to such party on any
outstanding Servicing Advances made thereby with respect to any Loan or REO Loan
in such Serviced Whole Loan or the related REO Mortgaged Property and reimbursed
in the related Collection Period (to be applied with respect to any particular
party in such manner that the interest that accrued first and has been
outstanding the longest shall be paid first);
second, to pay to the Trustee and, in the case of a Serviced
Whole Loan, any trustee under a securitization of such Companion Loan, pro rata;
the Master Servicer and, in the case of a Serviced Whole Loan with a Pari Passu
Companion Loan, any master servicer under a securitization of such Companion
Loan, pro rata; or the Special Servicer and, in the case of a Serviced Whole
Loan with a Pari Passu Companion Loan, any special servicer under a
securitization of such Companion Loan, pro rata; in that order, any interest due
and owing to such party on any outstanding P&I Advances (or comparable debt
service advances) made thereby, with respect to any Loan or REO Loan in such
Serviced Whole Loan or the related REO Mortgaged Property and reimbursed in the
related Collection Period (to be applied with respect to any particular party in
such manner that the interest that accrued first and has been outstanding the
longest shall be paid first); and
third, to pay any remaining portion of such Default Charges as
Additional Master Servicing Compensation to the Master Servicer, to the extent
received, if they were accrued with respect to such Companion Loan during a
period that it was a Performing Serviced Loan, or as Additional Special
Servicing Compensation to the Special Servicer, to the extent received, if they
were accrued with respect to such Companion Loan during a period that it was a
Specially Serviced Loan or a REO Loan, in each case pursuant to Section 3.11.
Section 3.28 Matters Regarding the Whole Loans.
(a) No Companion Loan Holder will have any liability to the Trust
or the Certificateholders 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, such Companion Loan Holder will not be protected
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in the performance of duties or by reason
of negligent disregard of duties.
(b) The related Companion Loan Holder shall be entitled to
receive (upon request) a copy of any report required to be delivered (upon
request or otherwise) to the Trustee with respect to the related Whole Loan or
any related REO Property by any other party hereto. The related Companion Loan
Holder shall also be entitled to receive a copy of any document, certificate,
instrument, notice or correspondence required to be delivered (upon request or
otherwise) by the Trustee or Master Servicer with respect to the related Whole
Loan or any related REO Property to any other party hereto. In addition, the
related Companion Loan Holder, or a servicer acting on its behalf, shall be
entitled to request information from the Master Servicer with respect to the
related Whole Loan to permit customary reporting with respect to a
securitization relating to the related Companion Loan; provided, however, the
information provider shall not be required to deliver information relating to
Loans other than the related Whole Loan or information of a scope or nature that
is materially different from that which is required to be delivered by the
Master Servicer under this Agreement. The Master Servicer shall be permitted to
require payment of a sum sufficient to cover the reasonable costs and expenses
of providing such information.
(c) If, pursuant to Section 2.03, Section 3.18 or Section 9.01,
the Mortgage Loan included in a Whole Loan is purchased or repurchased from the
Trust Fund, the purchaser thereof shall be bound by the terms of the related
Intercreditor Agreement and shall assume the rights and obligations of the
holder of the related Note under the related Intercreditor Agreement. All
portions of the related Mortgage File and other documents pertaining to such
Mortgage Loan shall be endorsed or assigned to the extent necessary or
appropriate to the purchaser of such Mortgage Loan in its capacity as the holder
of the related Note (as a result of such purchase or repurchase), under the
related Intercreditor Agreement in the manner contemplated under such agreement,
which such purchaser shall be deemed to acknowledge and thereafter such Mortgage
File shall be held by such purchaser or a custodian appointed thereby for the
benefit of each Note holder (as their interests appear under the related
Intercreditor Agreement). If the related Servicing File is not already in the
possession of such purchaser or custodian (as the case may be), it shall be
delivered to the master servicer or special servicer, as the case may be, under
the separate servicing agreement for the related Whole Loan.
Section 3.29 Matters Regarding the Non-Serviced Whole Loans.
(a) In the event that (i) any of the ChampionsGate Hotel Trustee,
the ChampionsGate Hotel Master Servicer or the ChampionsGate Hotel Special
Servicer shall be replaced in accordance with the terms of the ChampionsGate
Hotel Pooling Agreement, the Master Servicer and the Special Servicer shall
acknowledge any such successor as the successor to the ChampionsGate Hotel
Trustee, the ChampionsGate Hotel Master Servicer or the ChampionsGate Hotel
Special Servicer, as the case may be, and shall notify the Trustee regarding
such replacement and (ii) any of the Xxx Xxxx Xxxxxx Xxxxxxx, Xxx Xxxx Xxxxxx
Master Servicer or the One Park Avenue Special Servicer shall be replaced in
accordance with the terms of the One Park Avenue Pooling Agreement, the Master
Servicer and the Special Servicer shall acknowledge any such successor as the
successor to the Xxx Xxxx Xxxxxx Xxxxxxx, Xxx Xxxx Xxxxxx Master Servicer or the
One Park Avenue Special Servicer, as the case may be, and shall notify the
Trustee regarding such replacement.
(b) The Master Servicer shall deliver, or cause to be delivered,
to the Trustee, promptly following receipt (i) from the ChampionsGate Hotel
Master Servicer, the ChampionsGate Hotel Special Servicer or the ChampionsGate
Hotel Trustee, any servicing reports concerning the ChampionsGate Hotel Pari
Passu Mortgage Loan and (ii) from the One Park Avenue Master Servicer, One Park
Avenue Special Servicer or the One Park Avenue Trustee, any servicing reports
concerning the One Park Avenue Pari Passu Mortgage Loan.
(c) If either the Trustee or the Master Servicer receive notice
from a Rating Agency that the Master Servicer is no longer an "approved" master
servicer by any of the Rating Agencies rating the Certificates, then the Trustee
or the Master Servicer, as applicable, shall promptly notify the related
Non-Serviced Loan Master Servicer and the Non-Serviced Loan Trustee of the same.
Section 3.30 Certain Powers of the Controlling Holders and
Certain Intercreditor Matters.
(a) No Controlling Holder shall owe any fiduciary duty to the
Trustee, the Master Servicer, the Special Servicer or any Certificateholder with
respect to the related A/B Whole Loan. The related Controlling Holder will not
have any liability to the Certificateholders for any action taken, or for
refraining from the taking of any action or the giving or withholding of any
consent, pursuant to this Agreement, or for errors in judgment. By its
acceptance of a Certificate, each Certificateholder confirms its understanding
that the related Controlling Holder may take or refrain from taking actions that
favor the interests of one or more Classes of the Certificates over other
Classes of the Certificates, and that the related Controlling Holder may have
special relationships and interests that conflict with those of Holders of some
Classes of the Certificates, that the related Controlling Holder does not have
any duties to the Holders of any Class of Certificates, and that the related
Controlling Holder shall have no liability whatsoever for having so acted, and
no Certificateholder may take any action whatsoever against the related
Controlling Holder or any director, officer, employee, agent or principal
thereof for having so acted.
(b) Notwithstanding anything in this Agreement to the contrary,
with respect to each A/B Whole Loan, the related Controlling Holder, in lieu of
the Directing Certificateholder, shall be entitled to exercise all rights of the
Directing Certificateholder under this Agreement with respect to the related A/B
Whole Loan, as applicable, and any references to the Directing Certificateholder
in this Agreement relating to actions permitted to be taken only with the
consent of the Directing Certificateholder with respect to such A/B Whole Loan
shall be deemed to be references to the related Controlling Holder; provided,
however, (i) the Directing Certificateholder shall also have the right to
receive all reports and notices under this Agreement (which shall not be an
expense of the related Controlling Holder), (ii) the Directing Certificateholder
shall also have the right to consult with the Special Servicer (on a non-binding
basis) regarding such A/B Whole Loan and (iii) the Directing Certificateholder
(and not the related Controlling Holder) shall be entitled to exercise the
Purchase Option set forth in Section 3.18(c) with respect to such A/B Whole
Loan. In addition, the applicable Controlling Holder shall have any rights,
whether or not additional, that are specified in the related Intercreditor
Agreement.
In addition, if a Control Appraisal Period exists with respect to
an A/B Whole Loan, then the related Controlling Holder shall be the Directing
Certificateholder who shall be authorized to exercise any of its approval and
consent rights and powers provided for in Section 3.23, this Section 3.30 or
elsewhere in this Agreement or the related Intercreditor Agreement with respect
to such A/B Whole Loan, subject to the provisions of the related Intercreditor
Agreement; provided, however, the related Note B Holder shall nevertheless
retain the right to receive distributions and (if the Note B Holder is not the
related Borrower or an affiliate thereof) notices and reports under this
Agreement.
(c) Within five Business Days of receipt of written notice that a
new related Controlling Holder has been selected, the Trustee shall deliver
notice to the Master Servicer and the Special Servicer, of such related
Controlling Holder's identity.
(d) With respect to each A/B Whole Loan, notwithstanding anything
to the contrary contained herein, the related Controlling Holder shall have the
right to cure monetary and non-monetary defaults by the related Borrower as
provided in the related Intercreditor Agreement.
Section 3.31 Class A-2FL Swap Contract.
(a) On or before the Closing Date, the Swap Trustee, not in its
individual capacity but solely in its capacity as Swap Trustee, on behalf of the
Class A-2FL Grantor Trust, shall enter into the Class A-2FL Swap Contract and
related agreements with the Class A-2FL Swap Counterparty.
(b) Not later than 11:00 a.m. New York City time, on the second
Business Day prior to each Distribution Date, based on the CMSA Loan Periodic
Update File for the related Collection Period provided by the Master Servicer
pursuant to Section 3.12(d) and subject to the priorities set forth in Sections
4.01(a), 4.01(b) and 4.01(k), the Swap Trustee shall (i) calculate the Class
A-2FL Net Swap Payment in accordance with the terms of the Class A-2FL Swap
Contract and this Agreement, and (ii) notify the Class A-2FL Swap Counterparty
of any Class A-2FL Net Swap Payment. In the event the Swap Trustee fails to
receive any Class A-2FL Net Swap Payment payable by the Class A-2FL Swap
Counterparty on the second Business Day prior to the related Distribution Date,
the Swap Trustee shall provide the Class A-2FL Swap Counterparty with notice of
such non-payment no later than 5:00 p.m. New York City time on such date. On the
related Distribution Date following such notice of non-payment, if the Swap
Trustee fails to receive such Class A-2FL Net Swap Payment by 11:00 a.m. New
York City time on such Distribution Date, a Class A-2FL Swap Default and a Class
A-2FL Distribution Conversion shall occur on such Distribution Date.
(c) On each Distribution Date, the Swap Trustee shall remit the
Class A-2FL Net Swap Payment payable by the Class A-2FL Grantor Trust, if any,
to the Class A-2FL Swap Counterparty from the Class A-2FL Floating Rate Account;
provided that upon and during the continuation of a Class A-2FL Distribution
Conversion, the Swap Trustee shall not make such payments to the Class A-2FL
Swap Counterparty. Promptly upon receipt of any payment or other receipt in
respect of the Class A-2FL Swap Contract, the Swap Trustee shall deposit the
same into the Class A-2FL Floating Rate Account.
(d) The Swap Trustee shall at all times enforce the Class A-2FL
Grantor Trust's rights under the Class A-2FL Swap Contract. In the event of a
Class A-2FL Swap Default, the Swap Trustee shall promptly provide written notice
to the Holders of the Class A-2FL Certificates and shall be required to take
such actions (following the expiration of any applicable grace period specified
in the Class A-2FL Swap Contract), unless otherwise directed in writing by the
holders of 25% by Certificate Balance of the Class A-2FL Certificates, to
enforce the rights of the Class A-2FL Grantor Trust under the Class A-2FL Swap
Contract as may be permitted by the terms thereof, including termination
thereof, and use Class A-2FL Swap Termination Fees, if any, received from the
Class A-2FL Swap Counterparty to enter into a replacement interest rate swap
contract on substantially identical terms or on such other terms reasonably
acceptable to the Swap Trustee and the Depositor, with a replacement swap
counterparty that would not cause a Rating Agency Trigger Event and satisfies
the requirements of the Class A-2FL Swap Contract, subject, in each case, to
written confirmation by the Rating Agencies that such action will not result in
a qualification, downgrade or withdrawal of the then current ratings of the
Certificates. If the costs attributable to entering into a replacement interest
rate swap contract would exceed the amount of any Swap Termination Fees, a
replacement interest rate swap contract shall not be entered into and any such
proceeds will instead be distributed, pro rata, to the holders of the Class
A-2FL Certificates on the immediately succeeding Distribution Date as part of
the Class A-2FL Interest Distribution Amount for such Distribution Date.
Notwithstanding anything to the contrary in the Agreement, the Swap Trustee
shall be under no obligation to take any action to enforce the rights of the
Class A-2FL Grantor Trust under the Class A-2FL Swap Contract unless it is
assured, in its sole discretion, that the costs and expenses of such action(s)
will be reimbursed by the Holders of the Class A-2FL Certificates or another
party (other than the Class A-2FL Grantor Trust and/or the Trust).
Any Class A-2FL Distribution Conversion shall become permanent
following the determination by the Swap Trustee not to enter into a replacement
interest rate swap contract and distribution of any Class A-2FL Swap Termination
Fees to the Holders of the Class A-2FL Certificates. Any such Swap Default (or
termination of the Class A-2FL Swap Contract) and the resulting Class A-2FL
Distribution Conversion shall not, in and of itself, constitute an Event of
Default under this Agreement.
Upon any change (or notification to the Swap Trustee that such
change is imminent) in the payment terms on the Class A-2FL Certificates,
including as a result of a Class A-2FL Distribution Conversion, termination of a
Class A-2FL Distribution Conversion, a Swap Default or the cure of a Swap
Default, the Swap Trustee shall promptly notify the Depositor of the change in
payment terms.
(e) The Swap Trustee's obligation to pay to the Class A-2FL Swap
Counterparty any funds under the Class A-2FL Swap Contract shall be limited to
the provisions of Section 3.05(h) and in accordance with the priorities set
forth in Section 4.01(k); the Swap Trustee will have no obligation on behalf of
the Class A-2FL Grantor Trust or the Trust Fund to pay or cause to be paid to
the Class A-2FL Swap Counterparty any portion of the amounts due to the Class
A-2FL Swap Counterparty under the Class A-2FL Swap Contract for any Distribution
Date unless and until the related interest payment on the Class A-2FL Regular
Interest for such Distribution Date is actually received by the Swap Trustee.
(f) Any costs and expenses related to the Class A-2FL Swap
Contract will not be payable from the Class A-2FL Floating Rate Account and will
not constitute Class A-2FL Grantor Trust expenses or Trust Fund expenses. No
party hereunder shall advance any Class A-2FL Net Swap Payment payable by the
Class A-2FL Swap Counterparty. Simultaneous with the delivery to the
Certificateholders, the Swap Trustee shall (1) make available to the Class A-2FL
Swap Counterparty the Distribution Date Statement and (2) make available or
deliver to the Class A-2FL Swap Counterparty copies of any other reports or
notices delivered to the Holders of the Class A-2FL Certificates as and to the
extent required by the Class A-2FL Swap Contract.
Section 3.32 Class A-MFL Swap Contract.
(a) On or before the Closing Date, the Swap Trustee, not in its
individual capacity but solely in its capacity as Swap Trustee, on behalf of the
Class A-MFL Grantor Trust, shall enter into the Class A-MFL Swap Contract and
related agreements with the Class A-MFL Swap Counterparty.
(b) Not later than 11:00 a.m. New York City time, on the second
Business Day prior to each Distribution Date, based on the CMSA Loan Periodic
Update File for the related Collection Period provided by the Master Servicer
pursuant to Section 3.12(d) and subject to the priorities set forth in Sections
4.01(a), 4.01(b) and 4.01(n), the Swap Trustee shall (i) calculate the Class
A-MFL Net Swap Payment in accordance with the terms of the Class A-MFL Swap
Contract and this Agreement, and (ii) notify the Class A-MFL Swap Counterparty
of any Class A-MFL Net Swap Payment. In the event the Swap Trustee fails to
receive any Class A-MFL Net Swap Payment payable by the Class A-MFL Swap
Counterparty on the second Business Day prior to the related Distribution Date,
the Swap Trustee shall provide the Class A-MFL Swap Counterparty with notice of
such non-payment no later than 5:00 p.m. New York City time on such date. On the
related Distribution Date following such notice of non-payment, if the Swap
Trustee fails to receive such Class A-MFL Net Swap Payment by 11:00 a.m. New
York City time on such Distribution Date, a Class A-MFL Swap Default and a Class
A-MFL Distribution Conversion shall occur on such Distribution Date.
(c) On each Distribution Date, the Swap Trustee shall remit the
Class A-MFL Net Swap Payment payable by the Class A-MFL Grantor Trust, if any,
to the Class A-MFL Swap Counterparty from the Class A-MFL Floating Rate Account;
provided that upon and during the continuation of a Class A-MFL Distribution
Conversion, the Swap Trustee shall not make such payments to the Class A-MFL
Swap Counterparty. Promptly upon receipt of any payment or other receipt in
respect of the Class A-MFL Swap Contract, the Swap Trustee shall deposit the
same into the Class A-MFL Floating Rate Account.
(d) The Swap Trustee shall at all times enforce the Class A-MFL
Grantor Trust's rights under the Class A-MFL Swap Contract. In the event of a
Class A-MFL Swap Default, the Swap Trustee shall promptly provide written notice
to the Holders of the Class A-MFL Certificates and shall be required to take
such actions (following the expiration of any applicable grace period specified
in the Class A-MFL Swap Contract), unless otherwise directed in writing by the
holders of 25% by Certificate Balance of the Class A-MFL Certificates, to
enforce the rights of the Class A-MFL Grantor Trust under the Class A-MFL Swap
Contract as may be permitted by the terms thereof, including termination
thereof, and use Class A-MFL Swap Termination Fees, if any, received from the
Class A-MFL Swap Counterparty to enter into a replacement interest rate swap
contract on substantially identical terms or on such other terms reasonably
acceptable to the Swap Trustee and the Depositor, with a replacement swap
counterparty that would not cause a Rating Agency Trigger Event and satisfies
the requirements of the Class A-MFL Swap Contract, subject, in each case, to
written confirmation by the Rating Agencies that such action will not result in
a qualification, downgrade or withdrawal of the then current ratings of the
Certificates. If the costs attributable to entering into a replacement interest
rate swap contract would exceed the amount of any Swap Termination Fees, a
replacement interest rate swap contract shall not be entered into and any such
proceeds will instead be distributed, pro rata, to the holders of the Class
A-MFL Certificates on the immediately succeeding Distribution Date as part of
the Class A-MFL Interest Distribution Amount for such Distribution Date.
Notwithstanding anything to the contrary in the Agreement, the Swap Trustee
shall be under no obligation to take any action to enforce the rights of the
Class A-MFL Grantor Trust under the Class A-MFL Swap Contract unless it is
assured, in its sole discretion, that the costs and expenses of such action(s)
will be reimbursed by the Holders of the Class A-MFL Certificates or another
party (other than the Class A-MFL Grantor Trust and/or the Trust).
Any Class A-MFL Distribution Conversion shall become permanent
following the determination by the Swap Trustee not to enter into a replacement
interest rate swap contract and distribution of any Class A-MFL Swap Termination
Fees to the Holders of the Class A-MFL Certificates. Any such Swap Default (or
termination of the Class A-MFL Swap Contract) and the resulting Class A-MFL
Distribution Conversion shall not, in and of itself, constitute an Event of
Default under this Agreement.
Upon any change (or notification to the Swap Trustee that such
change is imminent) in the payment terms on the Class A-MFL Certificates,
including as a result of a Class A-MFL Distribution Conversion, termination of a
Class A-MFL Distribution Conversion, a Swap Default or the cure of a Swap
Default, the Swap Trustee shall promptly notify the Depositor of the change in
payment terms.
(e) The Swap Trustee's obligation to pay to the Class A-MFL Swap
Counterparty any funds under the Class A-MFL Swap Contract shall be limited to
the provisions of Section 3.05(h) and in accordance with the priorities set
forth in Section 4.01(n); the Swap Trustee will have no obligation on behalf of
the Class A-MFL Grantor Trust or the Trust Fund to pay or cause to be paid to
the Class A-MFL Swap Counterparty any portion of the amounts due to the Class
A-MFL Swap Counterparty under the Class A-MFL Swap Contract for any Distribution
Date unless and until the related interest payment on the Class A-MFL Regular
Interest for such Distribution Date is actually received by the Swap Trustee.
(f) Any costs and expenses related to the Class A-MFL Swap
Contract will not be payable from the Class A-MFL Floating Rate Account and will
not constitute Class A-MFL Grantor Trust expenses or Trust Fund expenses. No
party hereunder shall advance any Class A-MFL Net Swap Payment payable by the
Class A-MFL Swap Counterparty. Simultaneous with the delivery to the
Certificateholders, the Swap Trustee shall (1) make available to the Class A-MFL
Swap Counterparty the Distribution Date Statement and (2) make available or
deliver to the Class A-MFL Swap Counterparty copies of any other reports or
notices delivered to the Holders of the Class A-MFL Certificates as and to the
extent required by the Class A-MFL Swap Contract.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
Section 4.01 Distributions.
(a) (i) On each Distribution Date, amounts held in the REMIC I
Distribution Account shall be withdrawn or deemed to be withdrawn (to the extent
of the Available Distribution Amount, the "REMIC I Distribution Amount") in the
case of all Classes of REMIC I Regular Interests and distributed or deemed to be
distributed on the REMIC I Regular Interests as set forth in Section 4.01(a)(ii)
and distributed on the Class R-I Certificates as set forth in Section
4.01(a)(iii). Thereafter, until distributed to the Certificateholders, such
amounts shall be considered to be held in the REMIC II Distribution Account.
(ii) Principal and interest amounts, reimbursement of Realized
Losses and Additional Trust Fund Expenses and timing of distributions on
each REMIC I Regular Interest will be identical to such amounts,
reimbursements and timing on the related Corresponding Certificates
(including, for this purpose, the Class A-2FL Regular Interest and
excluding the Class A-2FL Certificates and including, for this purpose,
the Class A-MFL Regular Interest and excluding the Class A-MFL
Certificates); except that, solely for this purpose, all calculations of
interest with respect to the Corresponding REMIC I Regular Interests
shall be made as though the Class A-1 Certificate, Class A-2 Certificate,
Class A-2FL Regular Interest, Class A-3 Certificate, Class A-AB
Certificate, Class A-4 Certificate, Class A-5 Certificate, Class A-1A
Certificate, Class A-M Certificate, Class A-MF Certificate, Class A-MFL
Regular Interest, Class A-J Certificate, Class B Certificate, Class C
Certificate, Class D Certificate, Class E Certificate, Class F
Certificate, Class G Certificate, Class H Certificate, Class J
Certificate, Class K Certificate, Class L Certificate, Class M
Certificate, Class N Certificate, Class O Certificate, Class P
Certificate, Class Q Certificate and Class S Certificate Pass-Through
Rates were equal to the Weighted Average Adjusted Net Mortgage Rate and
as though the Class XW Notional Amount were zero at all times and such
that the amounts and timing of interest distributions on each
Corresponding REMIC I Regular Interest represent the aggregate of the
corresponding amounts on each Class of Corresponding Certificates and its
related Component of the Class XW Certificates; provided that (A)
interest shall be deemed distributed on such REMIC I Regular Interest
only in the same priority and to the extent actually distributable on
such related Class of Corresponding Certificates or related Component and
(B) interest distributable on the Class XW Certificates shall be
distributable pro rata among the related Components.
(iii) Any amount that remains in the REMIC I Distribution Account
on each Distribution Date after distribution of the REMIC I Distribution
Amount and Prepayment Premiums allocable to the REMIC I Regular Interests
pursuant to Section 4.01(c)(iv) shall be distributed to the Holders of
the Class R-I Certificates (but only to the extent of the Available
Distribution Amount for such Distribution Date remaining in the REMIC I
Distribution Account, if any).
(b) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Trustee shall transfer or be
deemed to transfer the REMIC I Distribution Amount from the REMIC I Distribution
Account to the REMIC II Distribution Account in the amounts set forth in Section
4.01(a)(ii) with respect to each Class of REMIC I Regular Interest, and
immediately thereafter, shall make distributions thereof from the REMIC II
Distribution Account to the REMIC II Certificates and to the Class A-2FL and
Class A-MFL Floating Rate Accounts in respect of the Class A-2FL Regular
Interest and Class A-MFL Regular Interest in the order of priority set forth in
clauses (i) through (lvii) immediately below, satisfying in full, to the extent
required and possible, each priority before making any distribution with respect
to any succeeding priority.
(i) concurrently, (a) from the Loan Group 1 Available
Distribution Amount, to distributions of interest to the Holders of the
Class A-1 Certificates, Class A-2 Certificates, Class A-2FL Regular
Interest, Class A-3 Certificates, Class A-AB Certificates, Class A-4
Certificates and Class A-5 Certificates, pro rata, as among such Classes
in accordance with, all Distributable Certificate Interest in respect of
each such Class of Certificates for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates, if any; (b)
from the Loan Group 2 Available Distribution Amount, distributions of
interest to the Holders of the Class A-1A Certificates, up to an amount
equal to all Distributable Certificate Interest in respect of such Class
of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior distribution dates, if any; and (c) from
the Loan Group 1 Available Distribution Amount and/or the Loan Group 2
Available Distribution Amount, distributions of interest to the Holders
of the Class XW Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any; provided, however, if the Loan Group 1
Available Distribution Amount and/or the Loan Group 2 Available
Distribution Amount is insufficient to pay in full the total amount of
Distributable Certificate Interest, as provided above, payable in respect
of any Class of Senior Certificates on such Distribution Date, then the
entire Available Distribution Amount shall be applied to make
distributions of interest to the Holders of the Class A-1 Certificates,
Class A-2 Certificates, Class A-2FL Regular Interest, Class A-3
Certificates, Class A-AB Certificates, Class A-4 Certificates, Class A-5
Certificates, Class A-1A Certificates and Class XW Certificates without
regard to Loan Group, up to an amount equal to, and pro rata as among
such Classes in accordance with, all Distributable Certificate Interest
in respect of each such Class of Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates,
if any;
(ii) to distributions of principal to the Holders of the Class
A-1 Certificates, Class A-2 Certificates, Class A-2FL Regular Interest,
Class A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates,
Class A-5 Certificates and Class A-1A Certificates in reduction of the
Class Principal Balances thereof concurrently (A)(1) first, to the
Holders of the Class A-AB Certificates, in an amount up to the Loan Group
1 Principal Distribution Amount and, after the outstanding Class
Principal Balance of the Class A-1A Certificates has been reduced to
zero, the Loan Group 2 Principal Distribution Amount remaining after
payments to Holders of the Class A-1A Certificates have been made on such
Distribution Date, until the outstanding Class Principal Balance of the
Class A-AB Certificates has been reduced to the Class A-AB Planned
Principal Amount; (2) second, to the Holders of the Class A-1
Certificates, in an amount up to the Loan Group 1 Principal Distribution
Amount and, after the outstanding Class Principal Balance of the Class
A-1A Certificates has been reduced to zero, the Loan Group 2 Principal
Distribution Amount remaining after payments to Holders of the Class A-1A
Certificates and the Holders of the Class A-AB Certificates (up to the
Class A-AB Planned Principal Amount) have been made on such Distribution
Date, until the outstanding Class Principal Balance of the Class A-1
Certificates has been reduced to zero; (3) third, to the Holders of the
Class A-2 Certificates and the Class A-2FL Regular Interest, pro rata, in
an amount up to the Loan Group 1 Principal Distribution Amount and, after
the outstanding Class Principal Balance of the Class A-1A Certificates
has been reduced to zero, the Loan Group 2 Principal Distribution Amount
remaining after payments to Holders of the Class A-1A Certificates and
the Holders of the Class A-AB Certificates (up to the Class A-AB Planned
Principal Amount) and the Class A-1 Certificates have been made on such
Distribution Date, until the outstanding Class Principal Balances of the
Class A-2 Certificates and the Class A-2FL Regular Interest have been
reduced to zero; (4) fourth, to the Holders of the Class A-3
Certificates, in an amount up to the Loan Group 1 Principal Distribution
Amount and, after the outstanding Class Principal Balance of the Class
A-1A Certificates has been reduced to zero, the Loan Group 2 Principal
Distribution Amount remaining after payments to Holders of the Class A-1A
Certificates and the Holders of the Class A-AB Certificates (up to the
Class A-AB Planned Principal Amount) and the Class A-1 Certificates,
Class A-2 Certificates and Class A-2FL Regular Interest have been made on
such Distribution Date, until the outstanding Class Principal Balance of
the Class A-3 Certificates has been reduced to zero; (5) fifth, to the
Holders of the Class A-AB Certificates, in an amount up to the Loan Group
1 Principal Distribution Amount and, after the outstanding Class
Principal Balance of the Class A-1A Certificates has been reduced to
zero, the Loan Group 2 Principal Distribution Amount remaining after
payments to Holders of the Class A-1A Certificates and the Holders of the
Class A-AB Certificates (up to the Class A-AB Planned Principal Amount)
and the Class A-1 Certificates, Class A-2 Certificates, Class A-2FL
Regular Interest and Class A-3 Certificates have been made on such
Distribution Date, until the outstanding Class Principal Balance of the
Class A-AB Certificates has been reduced to zero; (6) sixth, to the
Holders of the Class A-4 Certificates, in an amount up to the Loan Group
1 Principal Distribution Amount and, after the outstanding Class
Principal Balance of the Class A-1A Certificates has been reduced to
zero, the Loan Group 2 Principal Distribution Amount remaining after
payments to Holders of the Class A-1A Certificates, Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates and Class A-AB Certificates have been made on such
Distribution Date, until the Class Principal Balance of the Class A-4
Certificates has been reduced to zero; (7) seventh, to the Holders of the
Class A-5 Certificates, in an amount up to the Loan Group 1 Principal
Distribution Amount and, after the outstanding Class Principal Balance of
the Class A-1A Certificates has been reduced to zero, the Loan Group 2
Principal Distribution Amount remaining after payments to Holders of the
Class A-1A Certificates, Class A-1 Certificates, Class A-2 Certificates,
Class A-2FL Regular Interest, Class A-3 Certificates, Class A-AB
Certificates and Class A-4 Certificates have been made on such
Distribution Date, until the Class Principal Balance of the Class A-5
Certificates has been reduced to zero; and (B) to the Holders of the
Class A-1A Certificates, in an amount up to the Loan Group 2 Principal
Distribution Amount and, after the outstanding Class Principal Balance of
the Class A-1 Certificates, Class A-2 Certificates, Class A-2FL Regular
Interest, Class A-3 Certificates, Class A-AB Certificates, Class A-4
Certificates and Class A-5 Certificates have been reduced to zero, the
Loan Group 1 Principal Distribution Amount remaining after payments to
Holders of the Class A-1 Certificates, Class A-2 Certificates, Class
A-2FL Regular Interest, Class A-3 Certificates, Class A-AB Certificates,
Class A-4 Certificates, Class A-5 Certificates and Class A-1A
Certificates have been made on such Distribution Date, until the Class
Principal Balance of the Class A-1A Certificates has been reduced to
zero;
(iii) to reimburse the Holders of the Class A-1 Certificates,
Class A-2 Certificates, Class A-2FL Regular Interest, Class A-3
Certificates, Class A-AB Certificates, Class A-4 Certificates, Class A-5
Certificates and Class A-1A Certificates, up to an amount equal to, and
pro rata as among such Classes in accordance with, the respective amounts
of Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class Principal Balance of such Classes and for which no
reimbursement has previously been paid;
(iv) to distributions of interest to the Holders of the Class A-M
Certificates, Class A-MF Certificates and Class A-MFL Regular Interest,
pro rata, in an amount equal to all Distributable Certificate Interest in
respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(v) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-5 Certificates and Class A-1A Certificates have been reduced to zero,
to distributions of principal to the Holders of the Class A-M
Certificates, Class A-MF Certificates and Class A-MFL Regular Interest,
pro rata, in an amount (not to exceed the Class Principal Balances of the
Class A-M Certificates, Class A-MF Certificates and Class A-MFL Regular
Interest outstanding immediately prior to such Distribution Date) equal
to the entire remaining Principal Distribution Amount for such
Distribution Date;
(vi) to distributions to the Holders of the Class A-M
Certificates, Class A-MF Certificates and Class A-MFL Regular Interest,
pro rata, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, that were previously
allocated to the Class Principal Balances of the Class A-M Certificates,
Class A-MF Certificates and Class A-MFL Regular Interest and that remain
unreimbursed immediately prior to such Distribution Date;
(vii) to distributions of interest to the Holders of the Class
A-J Certificates in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(viii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-1A Certificates, Class A-M Certificates, Class
A-MF Certificates and Class A-MFL Regular Interest have been reduced to
zero, to distributions of principal to the Holders of the Class A-J
Certificates and Class A-MFL Regular Interest, pro rata, in an amount
(not to exceed the Class Principal Balance of the Class A-J Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire remaining Principal Distribution Amount for such Distribution
Date;
(ix) to distributions to the Holders of the Class A-J in an
amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class A-J Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(x) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xi) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-1A Certificates, Class A-M Certificates, Class
A-MF Certificates, Class A-MFL Regular Interest and Class A-J
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class B Certificates, in an amount (not to exceed the
Class Principal Balance of the Class B Certificates outstanding
immediately prior to such Distribution Date) equal to the entire
remaining Principal Distribution Amount for such Distribution Date;
(xii) to distributions to the Holders of the Class B
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class B
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xiii) to distributions of interest to the Holders of the Class C
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xiv) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-1A Certificates, Class A-M Certificates, Class
A-MF Certificates, Class A-MFL Regular Interest, Class A-J Certificates
and Class B Certificates have been reduced to zero, to distributions of
principal to the Holders of the Class C Certificates, in an amount (not
to exceed the Class Principal Balance of the Class C Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire remaining Principal Distribution Amount for such Distribution
Date;
(xv) to distributions to the Holders of the Class C Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class C Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xvi) to distributions of interest to the Holders of the Class D
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xvii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-1A Certificates, Class A-M Certificates, Class
A-MF Certificates, Class A-MFL Regular Interest, Class A-J Certificates,
Class B Certificates and Class C Certificates have been reduced to zero,
to distributions of principal to the Holders of the Class D Certificates,
in an amount (not to exceed the Class Principal Balance of the Class D
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xviii) to distributions to the Holders of the Class D
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class D
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xix) to distributions of interest to the Holders of the Class E
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xx) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-1A Certificates, Class A-M Certificates, Class
A-MF Certificates, Class A-MFL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates and Class D Certificates have
been reduced to zero, to distributions of principal to the Holders of the
Class E Certificates, in an amount (not to exceed the Class Principal
Balance of the Class E Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xxi) to distributions to the Holders of the Class E
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class E
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xxii) to distributions of interest to the Holders of the Class F
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xxiii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-1A Certificates, Class A-M Certificates, Class
A-MF Certificates, Class A-MFL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates and
Class E Certificates have been reduced to zero, to distributions of
principal to the Holders of the Class F Certificates, in an amount (not
to exceed the Class Principal Balance of the Class F Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire remaining Principal Distribution Amount for such Distribution
Date;
(xxiv) to distributions to the Holders of the Class F
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class F
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xxv) to distributions of interest to the Holders of the Class G
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xxvi) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-1A Certificates, Class A-M Certificates, Class
A-MF Certificates, Class A-MFL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates and Class F Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class G Certificates, in
an amount (not to exceed the Class Principal Balance of the Class G
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xxvii) to distributions to the Holders of the Class G
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class G
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xxviii) to distributions of interest to the Holders of the Class
H Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xxix) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-1A Certificates, Class A-M Certificates, Class
A-MF Certificates, Class A-MFL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates and Class G Certificates have been
reduced to zero, to distributions of principal to the Holders of the
Class H Certificates, in an amount (not to exceed the Class Principal
Balance of the Class H Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xxx) to distributions to the Holders of the Class H
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class H
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xxxi) to distributions of interest to the Holders of the Class J
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xxxii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-1A Certificates, Class A-M Certificates, Class
A-MF Certificates, Class A-MFL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates and Class H
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class J Certificates, in an amount (not to exceed the
Class Principal Balances of the Class J Certificates outstanding
immediately prior to such Distribution Date) equal to the entire
remaining Principal Distribution Amount for such Distribution Date;
(xxxiii) to distributions to the Holders of the Class J
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balances of the Class J
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xxxiv) to distributions of interest to the Holders of the Class
K Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xxxv) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-1A Certificates, Class A-M Certificates, Class
A-MF Certificates, Class A-MFL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates and Class J Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class K Certificates, in
an amount (not to exceed the Class Principal Balance of the Class K
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xxxvi) to distributions to the Holders of the Class K
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class K
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xxxvii) to distributions of interest to the Holders of the Class
L Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xxxviii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-1A Certificates, Class A-M Certificates, Class
A-MF Certificates, Class A-MFL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates and Class K Certificates have been
reduced to zero, to distributions of principal to the Holders of the
Class L Certificates, in an amount (not to exceed the Class Principal
Balance of the Class L Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xxxix) to distributions to the Holders of the Class L
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class L
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xl) to distributions of interest to the Holders of the Class M
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xli) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-1A Certificates, Class A-M Certificates, Class
A-MF Certificates, Class A-MFL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates and Class L
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class M Certificates, in an amount (not to exceed the
Class Principal Balance of the Class M Certificates outstanding
immediately prior to such Distribution Date) equal to the entire
remaining Principal Distribution Amount for such Distribution Date;
(xlii) to distributions to the Holders of the Class M
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class M
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xliii) to distributions of interest to the Holders of the Class
N Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xliv) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-1A Certificates, Class A-M Certificates, Class
A-MF Certificates, Class A-MFL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates and Class M Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class N Certificates, in
an amount (not to exceed the Class Principal Balance of the Class N
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xlv) to distributions to the Holders of the Class N
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class N
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xlvi) to distributions of interest to the Holders of the Class O
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xlvii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-1A Certificates, Class A-M Certificates, Class
A-MF Certificates, Class A-MFL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates and Class N Certificates have been
reduced to zero, to distributions of principal to the Holders of the
Class O Certificates, in an amount (not to exceed the Class Principal
Balance of the Class O Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xlviii) to distributions to the Holders of the Class O
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class O
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xlix) to distributions of interest to the Holders of the Class P
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(l) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-1A Certificates, Class A-M Certificates, Class
A-MF Certificates, Class A-MFL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates, Class N Certificates and Class O
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class P Certificates, in an amount (not to exceed the
Class Principal Balance of the Class P Certificates outstanding
immediately prior to such Distribution Date) equal to the entire
remaining Principal Distribution Amount for such Distribution Date;
(li) to distributions to the Holders of the Class P Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class P Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(lii) to distributions of interest to the Holders of the Class Q
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(liii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-1A Certificates, Class A-M Certificates, Class
A-MF Certificates, Class A-MFL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates, Class N Certificates, Class O
Certificates and Class P Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class Q Certificates, in
an amount (not to exceed the Class Principal Balance of the Class Q
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(liv) to distributions to the Holders of the Class Q
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class Q
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(lv) to distributions of interest to the Holders of the Class S
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(lvi) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-1A Certificates, Class A-M Certificates, Class
A-MF Certificates, Class A-MFL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates, Class N Certificates, Class O
Certificates, Class P Certificates and Class Q Certificates have been
reduced to zero, to distributions of principal to the Holders of the
Class S Certificates, in an amount (not to exceed the Class Principal
Balance of the Class S Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(lvii) to distributions to the Holders of the Class S
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class S
Certificates and that remain unreimbursed immediately prior to such
Distribution Date; and
(lviii) to distributions to the Holders of the Class R-II
Certificates, in the amount remaining in the REMIC II Distribution
Account for such Distribution Date remaining after the distributions to
be made on such Distribution Date pursuant to clauses (i) through (lviii)
of this Section 4.01(b);
provided that, on each Distribution Date coinciding with or following the Senior
Principal Distribution Cross Over Date, and in any event on the Final
Distribution Date, the payments of principal to be made pursuant to clause (ii)
of this Section 4.01(b), will be so made to the Holders of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class A-3
Certificates, Class A-AB Certificates, Class A-4 Certificates and Class A-1A
Certificates, subject to available funds, up to an amount equal to, and pro rata
as among such Classes in accordance with, the respective then outstanding Class
Principal Balances of such Classes, and without regard to the Principal
Distribution Amount for such date; and provided, further, on the Final
Distribution Date, the payments of principal to be made pursuant to any of
clauses (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi), (xxix),
(xxxii), (xxxv), (xxxviii), (xli), (xliv), (xlvii), (l), (liii) and (lvi) of
this Section 4.01(b) with respect to any Class of REMIC II Regular Certificates
and the Class A-2FL Regular Interest and Class A-MFL Regular Interest, will be
so made to the Holders thereof, subject to available funds, up to an amount
equal to the entire then outstanding Class Principal Balance of such Class of
Certificates or the Class A-2FL Regular Interest or Class A-MFL Regular
Interest, and without regard to the Principal Distribution Amount for such date.
References to "remaining Principal Distribution Amount" in clause (ii) of this
Section 4.01(b), in connection with payments of principal to be made to the
Holders of the Class A-1 Certificates, Class A-2 Certificates, Class A-2FL
Regular Interest, Class A-3 Certificates, Class A-AB Certificates, Class A-4
Certificates and Class A-1A Certificates shall be to the Principal Distribution
Amount for such Distribution Date, net of any distributions of principal made in
respect thereof to the Holders of each other Class of Class A Certificates
(other than the Class A-2FL Certificates) and the Class A-2FL Regular Interest,
if any, that pursuant to clause (ii) of this Section 4.01(b) has an earlier
right to payment with respect thereto. References to "remaining Principal
Distribution Amount" in any of clauses (v), (viii), (xi), (xiv), (xvii), (xx),
(xxiii), (xxvi), (xxix), (xxxii), (xxxv), (xxxviii), (xli), (xliv), (xlvii),
(l), (liii) and (lvi) of this Section 4.01(b), in connection with the payments
of principal to be made to the Holders of any Class of REMIC II Regular
Certificates and the Class A-2FL Regular Interest and Class A-MFL Regular
Interest, shall be to the Principal Distribution Amount for such Distribution
Date, net of any payments of principal made in respect thereof to the Holders of
each other Class of Sequential Pay Certificates and the Class A-2FL Regular
Interest and Class A-MFL Regular Interest that has a higher Payment Priority.
All distributions of interest made in respect of the Class XW
Certificates on any Distribution Date pursuant to clause (i) above, shall be
deemed to have been made in respect of all the Components of such Class, pro
rata in accordance with the respective amounts of interest that would be payable
on such Components on such Distribution Date based on the Class XW Strip Rate of
such Component multiplied by its Component Notional Amount, less an allocable
portion of any Prepayment Interest Shortfall, together with any amounts thereof
remaining unpaid from previous Distribution Dates.
(c) (i) Loan Group 1. On each Distribution Date, Prepayment
Premiums collected on the Mortgage Loans in Loan Group 1 during the related
Prepayment Period will be distributed by the Trustee to the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class A-3
Certificates, Class A-AB Certificates, Class A-4 Certificates, Class A-5
Certificates, Class A-1A Certificates, Class A-M Certificates, Class A-MF
Certificates, Class A-MFL Regular Interest, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates, Class H Certificates, Class J
Certificates and Class K Certificates, in an amount equal to the product of: (i)
a fraction, not greater than one, whose numerator is the amount distributed as
principal to such Class on such Distribution Date, and whose denominator is the
total amount distributed as principal to the Class A-1 Certificates, Class A-2
Certificates, Class A-2FL Regular Interest, Class A-3 Certificates, Class A-AB
Certificates, Class A-4 Certificates, Class A-5 Certificates, Class A-1A
Certificates, Class A-M Certificates, Class A-MF Certificates, Class A-MFL
Regular Interest, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates, Class N Certificates,
Class O Certificates, Class P Certificates, Class Q Certificates and Class S
Certificates on such Distribution Date, (ii) the Base Interest Fraction for the
related principal payment on such Class of Certificates, and (iii) the amount of
Prepayment Premiums collected on such principal prepayment during the related
Prepayment Period. However, the amount of Prepayment Premiums so distributed to
the Class A-1 Certificates, Class A-2 Certificates, Class A-2FL Regular
Interest, Class A-3 Certificates, Class A-AB Certificates, Class A-4
Certificates, Class A-5 Certificates, Class A-1A Certificates, Class A-M
Certificates, Class A-MF Certificates, Class A-MFL Regular Interest, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D Certificates,
Class E Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates and Class K Certificates in accordance with
the preceding sentence will not exceed the amount of Prepayment Premiums
collected on the Mortgage Loans in Loan Group 1 during such Prepayment Period.
Any Prepayment Premiums collected during the related Prepayment Period remaining
after such distributions will be distributed to the Holders of the Class XW
Certificates. No Prepayment Premiums in respect of Mortgage Loans included in
Loan Group 1 will be distributed to Holders of any other Class of Certificates.
(ii) Loan Group 2. On each Distribution Date, Prepayment Premiums
collected on the Mortgage Loans included in Loan Group 2 during the
related Prepayment Period will be required to be distributed by the
Trustee to the Holders of the Class A-1A Certificates in an amount equal
to the product of: (a) a fraction, not greater than one, whose numerator
is the amount of principal distributed to such Class on such Distribution
Date and whose denominator is the total amount of principal payments
received in respect of such Distribution Date for all Mortgage Loans
included in Loan Group 2 on such Distribution Date, (b) the Base Interest
Fraction for the related principal prepayment and such Class of
Certificates and (c) the amount of Prepayment Premiums collected on such
principal prepayment during the related Prepayment Period. However, the
amount of Prepayment Premiums so distributed to the Class A-1A
Certificates in accordance with the preceding sentence will not exceed
the amount of Prepayment Premiums collected on the Mortgage Loans in Loan
Group 2 during such Prepayment Period. Any Prepayment Premiums collected
during the related Prepayment Period remaining after such distributions
will be distributed to the Holders of the Class XW Certificates.
(iii) Other Aspects. No Prepayment Premiums will be distributed
to the Holders of the Class L Certificates, Class M Certificates, Class N
Certificates, Class O Certificates, Class P Certificates, Class Q
Certificates, Class S Certificates, Class R-I Certificates or Class R-II
Certificates. Instead, after the Certificate Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-1A Certificates, Class A-M Certificates, Class
A-MF Certificates, Class A-MFL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates and Class K Certificates have been
reduced to zero, all Prepayment Premiums with respect to the Mortgage
Loans will be distributed to the Holders of the Class XW Certificates. No
Prepayment Premiums in respect of Mortgage Loans included in Loan Group 1
and Loan Group 2 will be distributed to Holders of any other Class of
Certificates. Prepayment Premiums will be distributed on any Distribution
Date only to the extent they are received in respect of the Mortgage
Loans in the related Prepayment Period.
(iv) All distributions of Prepayment Premiums made in respect of
the respective Classes of REMIC II Regular Certificates and the Class
A-2FL Regular Interest and Class A-MFL Regular Interest on each
Distribution Date pursuant to Sections 4.01(c)(i) and 4.01(c)(ii) shall
first be deemed to be distributed from REMIC I to REMIC II in respect of
the REMIC I Regular Interests pro rata based upon the amount of principal
distributed in respect of each Class of REMIC I Regular Interest for such
Distribution Date pursuant to Sections 4.01(c)(i) and 4.01(c)(ii).
(d) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise provided below, all such distributions with respect to each Class of
Certificates on each Distribution Date shall be made to the Certificateholders
of the respective Class of record at the close of business on the related Record
Date and shall be made by wire transfer of immediately available funds to the
account of any such Certificateholder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five Business Days
prior to the related Record Date (which wiring instructions may be in the form
of a standing order applicable to all subsequent Distribution Dates), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. The final distribution on each Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Certificate)
will be made in like manner, but only upon presentation and surrender of such
Certificate at the Corporate Trust Office or such other location specified in
the notice to Certificateholders of such final distribution. Any distribution
that is to be made with respect to a Certificate in reimbursement of a Realized
Loss or Additional Trust Fund Expense previously allocated thereto, which
reimbursement is to occur after the date on which such Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Certificateholder that surrendered such Certificate
as such address last appeared in the Certificate Register or to any other
address of which the Trustee was subsequently notified in writing.
(e) Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor, the Master Servicer, the Special Servicer
or the REMIC Administrator shall have any responsibility therefor except as
otherwise provided by this Agreement or applicable law.
(f) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of their Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates. Distributions in reimbursement of
Realized Losses and Additional Trust Fund Expenses previously allocated to a
Class of Certificates shall not constitute distributions of principal and shall
not result in a reduction of the related Class Principal Balance.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to such
Class of Certificates) will be made on the next Distribution Date, the Trustee
shall, as soon as practicable in the month in which such Distribution Date
occurs, mail to each Holder of such Class of Certificates as of the date of
mailing a notice to the effect that:
(i) the Trustee expects that the final distribution with respect
to such Class of Certificates will be made on such Distribution Date but
only upon presentation and surrender of such Certificates at the
Corporate Trust Office or such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of
Certificates of such Class on such Distribution Date because of the failure of
such Holder or Holders to tender their Certificates shall, on such date, be set
aside and held uninvested in trust and credited to the account or accounts of
the appropriate non-tendering Holder or Holders. If any Certificates as to which
notice has been given pursuant to this Section 4.01(g) shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice all such Certificates shall not have been surrendered for cancellation,
the Trustee, directly or through an agent, shall take such steps to contact the
remaining non-tendering Certificateholders concerning the surrender of their
Certificates as it shall deem appropriate. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders following the
first anniversary of the delivery of such second notice to the non-tendering
Certificateholders shall be paid out of such funds. No interest shall accrue or
be payable to any Certificateholder on any amount held in trust hereunder by the
Trustee as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with this Section
4.01(g). If all of the Certificates shall not have been surrendered for
cancellation by the second anniversary of the delivery of the second notice, the
Trustee shall distribute to the Class R-II Certificateholders all unclaimed
funds and other assets that remain subject hereto.
(h) Notwithstanding any other provision of this Agreement, the
Trustee, in its capacity as Swap Trustee, shall comply with all federal
withholding requirements respecting payments made or received under the Class
A-2FL Swap Contract or the Class A-MFL Swap Contract, as applicable, and
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code taking into account
any applicable exemptions from, or reductions in, withholding upon receipt of
appropriate IRS forms and documentation. The consent of Certificateholders shall
not be required for such withholding. In the event the Trustee does withhold any
amount from interest or original issue discount payments or advances thereof to
any Certificateholder pursuant to federal withholding requirements, the Trustee
shall indicate the amount withheld to such Certificateholders. Such amounts
shall be deemed to have been distributed to such Certificateholders for all
purposes of this Agreement.
(i) [RESERVED].
(j) On the final Master Servicer Remittance Date, the Master
Servicer shall withdraw from the Certificate Account and deliver to the REMIC
Administrator who shall distribute to the Holders of the Class R-I Certificates,
any Loss of Value Payments transferred from the Loss of Value Reserve Fund to
the Certificate Account on the immediately preceding Master Servicer Remittance
Date in accordance with Section 3.05(a), to the extent not otherwise included in
the Available Distribution Amount for the final Distribution Date.
(k) On each Distribution Date, to the extent of the Class A-2FL
Available Funds for such Distribution Date, the Trustee shall make distributions
from the Class A-2FL Floating Rate Account in the following order of priority,
satisfying in full, to the extent required and possible, each priority before
making any distribution with respect to any succeeding priority:
(A) first, to the Holders of the Class A-2FL Certificates
in respect of interest, up to an amount equal to the Class A-2FL
Interest Distribution Amount, for such Distribution Date;
(B) second, to the Holders of the Class A-2FL Certificates
in reduction of the Certificate Balances thereof, an amount equal
to the Class A-2FL Principal Distribution Amount until the
outstanding Certificate Balance thereof has been reduced to zero;
(C) third, to the Holders of the Class A-2FL Certificates
until all Realized Losses and Additional Trust Fund Expenses
previously allocated to the Class A-2FL Certificates (as a result
of the allocation of Realized Losses and Additional Trust Fund
Expenses to the Class A-2FL Regular Interest) but not previously
reimbursed, have been reimbursed in full; and
(D) fourth, to pay termination payments, if any, to the
A-2FL Swap Counterparty; and
(E) fifth, any remaining amount to the Holders of the
Class A-2FL Certificates.
(l) So long as a Class A-2FL Distribution Conversion is not in
effect, any Prepayment Premiums paid on the Class A-2FL Regular Interest shall
be payable to the Class A-2FL Swap Counterparty pursuant to the terms of the
Class A-2FL Swap Contract on a net basis as part of the Class A-2FL Net Swap
Payment specified in Section 3.31. On each Distribution Date for which a Class
A-2FL Distribution Conversion is in effect, any Prepayment Premium paid on the
Class A-2FL Regular Interest shall be distributed to the Holders of the Class
A-2FL Certificates. Any termination payments due to the Class A-2FL Swap
Counterparty under the Class A-2FL Swap Contract shall be payable solely from
(i) amounts, if any, remaining in the Class A-2FL Floating Rate Account after
all other amounts have been paid to the Class A-2FL Regular Interest (including
all principal amounts outstanding) and to the Class A-2FL Certificates pursuant
to Section 4.01 and (ii) to the extent of any payment made by a replacement swap
counterparty to the Class A-2FL Grantor Trust in consideration for entering into
such replacement swap contract, if any (less any costs and expenses incurred by
the Class A-2FL Grantor Trust in connection with entering into such replacement
swap contract).
(m) If, in connection with any Distribution Date, the Trustee has
reported the amount of an anticipated distribution to the Depository based on a
report received from the Master Servicer, and the final report from the Master
Servicer changes the initial amounts forwarded by the Master Servicer to the
Trustee or if there is Class A-2FL Swap Default, the Trustee shall use
commercially reasonable efforts to notify the Depository to make a revised
distribution on a timely basis on such Distribution Date. The Trustee shall not
be liable or held responsible for any resulting delay (or claim by the
Depository resulting therefrom) in the making of such distribution to the
Certificateholders and shall be entitled to reimbursement from the Class A-2FL
Grantor Trust for any reasonable losses, costs or expenses resulting therefrom.
(n) On each Distribution Date, to the extent of the Class A-MFL
Available Funds for such Distribution Date, the Trustee shall make distributions
from the Class A-MFL Floating Rate Account in the following order of priority,
satisfying in full, to the extent required and possible, each priority before
making any distribution with respect to any succeeding priority:
(A) first, to the Holders of the Class A-MFL Certificates
in respect of interest, up to an amount equal to the Class A-MFL
Interest Distribution Amount, for such Distribution Date;
(B) second, to the Holders of the Class A-MFL Certificates
in reduction of the Certificate Balances thereof, an amount equal
to the Class A-MFL Principal Distribution Amount until the
outstanding Certificate Balance thereof has been reduced to zero;
(C) third, to the Holders of the Class A-MFL Certificates
until all Realized Losses and Additional Trust Fund Expenses
previously allocated to the Class A-MFL Certificates (as a result
of the allocation of Realized Losses and Additional Trust Fund
Expenses to the Class A-MFL Regular Interest) but not previously
reimbursed, have been reimbursed in full; and
(D) fourth, to pay termination payments, if any, to the
A-MFL Swap Counterparty; and
(E) fifth, any remaining amount to the Holders of the
Class A-MFL Certificates.
(o) So long as a Class A-MFL Distribution Conversion is not in
effect, any Prepayment Premiums paid on the Class A-MFL Regular Interest shall
be payable to the Class A-MFL Swap Counterparty pursuant to the terms of the
Class A-MFL Swap Contract on a net basis as part of the Class A-MFL Net Swap
Payment specified in Section 3.32. On each Distribution Date for which a Class
A-MFL Distribution Conversion is in effect, any Prepayment Premium paid on the
Class A-MFL Regular Interest shall be distributed to the Holders of the Class
A-MFL Certificates. Any termination payments due to the Class A-MFL Swap
Counterparty under the Class A-MFL Swap Contract shall be payable solely from
(i) amounts, if any, remaining in the Class A-MFL Floating Rate Account after
all other amounts have been paid to the Class A-MFL Regular Interest (including
all principal amounts outstanding) and to the Class A-MFL Certificates pursuant
to Section 4.01 and (ii) to the extent of any payment made by a replacement swap
counterparty to the Class A-MFL Grantor Trust in consideration for entering into
such replacement swap contract, if any (less any costs and expenses incurred by
the Class A-MFL Grantor Trust in connection with entering into such replacement
swap contract).
(p) If, in connection with any Distribution Date, the Trustee has
reported the amount of an anticipated distribution to the Depository based on a
report received from the Master Servicer, and the final report from the Master
Servicer changes the initial amounts forwarded by the Master Servicer to the
Trustee or if there is Class A-MFL Swap Default, the Trustee shall use
commercially reasonable efforts to notify the Depository to make a revised
distribution on a timely basis on such Distribution Date. The Trustee shall not
be liable or held responsible for any resulting delay (or claim by the
Depository resulting therefrom) in the making of such distribution to the
Certificateholders and shall be entitled to reimbursement from the Class A-MFL
Grantor Trust for any reasonable losses, costs or expenses resulting therefrom.
Section 4.02 Statements to Certificateholders; Certain Reports by
the Master Servicer and the Special Servicer.
(a) On each Distribution Date, the Trustee shall provide or make
available, either in electronic format or by first class mail to each Holder
(and, if it shall have certified to the Trustee as to its Ownership Interest in
a Class of Book-Entry Certificates, each Certificate Owner) of the Certificates,
the Class A-2FL Swap Counterparty, the Class A-MFL Swap Counterparty, to the
Rating Agencies a statement substantially in the form set forth as Exhibit G
hereto (a "Distribution Date Statement") and based upon the information provided
by the Master Servicer in accordance with Commercial Mortgage Securities
Association guidelines, as to the distributions made on such Distribution Date
setting forth:
(i) the amount of the distribution, if any, on such Distribution
Date to the Holders of each Class of REMIC II Regular Certificates and
the Class A-2FL Regular Interest and Class A-MFL Regular Interest (and
correspondingly, the Class A-2FL and Class A-MFL Certificates) in
reduction of the Class Principal Balance thereof;
(ii) the amount of the distribution, if any, on such Distribution
Date to the Holders of each Class of REMIC II Regular Certificates and
the Class A-2FL Regular Interest and Class A-MFL Regular Interest
allocable to Distributable Certificate Interest, the Class A-2FL Interest
Distribution Amount or the Class A-MFL Interest Distribution Amount, as
applicable, and the amount of the distribution, if any, on such
Distribution Date to the Holders of each Class of REMIC II Regular
Certificates and the Class A-2FL Regular Interest and Class A-MFL Regular
Interest allocable to Prepayment Premiums; and, with respect to the Class
A-2FL Certificates, if applicable, notification that the amount of
interest distribution thereon is equal to the interest distribution
amount with respect to the Class A-2FL Regular Interest which is being
paid as a result of a Class A-2FL Distribution Conversion; and, with
respect to the Class A-MFL Certificates, if applicable, notification that
the amount of interest distribution thereon is equal to the interest
distribution amount with respect to the Class A-MFL Regular Interest
which is being paid as a result of a Class A-MFL Distribution Conversion;
(iii) the aggregate amount of P&I Advances (both as to those
within any applicable grace period and those which are beyond any
applicable grace period, together with the aggregate amount of
delinquencies) and other Servicing Advances made in respect of the
immediately preceding Distribution Date;
(iv) P&I Advances outstanding as of the Master Servicer
Remittance Date;
(v) the aggregate amount of P&I Advances made with respect to the
Mortgage Pool and with respect to each Loan Group in respect of the
immediately preceding Determination Date;
(vi) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
(vii) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Pool as of the end of the Collection Period for the immediately
preceding Determination Date;
(viii) as of the Determination Date for the related Distribution
Date, the number and aggregate unpaid principal balance of Mortgage Loans
(A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90
or more days, (D) current but specially serviced or in foreclosure but
not a REO Property and (E) identification of Mortgage Loans the Mortgagor
for which is subject to bankruptcy;
(ix) with respect to any REO Property included in the Trust Fund
as of the end of the Collection Period for such Distribution Date, the
principal balance of the Mortgage Loan as of the date such Mortgage Loan
became delinquent;
(x) the Accrued Certificate Interest and Distributable
Certificate Interest in respect of each Class of REMIC II Regular
Certificates, Class A-2FL Regular Interest and Class A-MFL Regular
Interest for such Distribution Date;
(xi) the aggregate amount of Distributable Certificate Interest
payable in respect of each Class of REMIC II Regular Certificates and the
Class A-2FL Regular Interest and Class A-MFL Regular Interest on such
Distribution Date, including, without limitation, any Distributable
Certificate Interest remaining unpaid from prior Distribution Dates;
(xii) any unpaid Distributable Certificate Interest in respect of
each Class of REMIC II Regular Certificates and the Class A-2FL Regular
Interest and Class A-MFL Regular Interest after giving effect to the
distributions made on such Distribution Date;
(xiii) the Pass-Through Rate for each Class of REMIC II Regular
Certificates and the Class A-2FL Regular Interest and Class A-MFL Regular
Interest (and correspondingly, the Class A-2FL and Class A-MFL
Certificates) for such Distribution Date;
(xiv) the Principal Distribution Amount with respect to the
Mortgage Pool and with respect to each Loan Group for such Distribution
Date, separately identifying the amounts distributable to each Class of
REMIC II Regular Certificates and the Class A-2FL Regular Interest and
Class A-MFL Regular Interest (and correspondingly, the Class A-2FL and
Class A-MFL Certificates);
(xv) the aggregate of all Realized Losses incurred during the
related Collection Period and all Additional Trust Fund Expenses incurred
during the related Collection Period, and an itemization of all such
Additional Trust Fund Expenses;
(xvi) the Certificate Principal Balance or Notional Amount, as
the case may be, of each Class of REMIC II Regular Certificates and the
Class A-2FL Regular Interest and Class A-MFL Regular Interest (and
correspondingly, the Class A-2FL and Class A-MFL Certificates)
outstanding immediately before and immediately after such Distribution
Date, separately identifying any reduction therein due to the allocation
of Realized Losses and Additional Trust Fund Expenses on such
Distribution Date;
(xvii) the Certificate Factor for each Class of Regular
Certificates immediately following such Distribution Date;
(xviii) the aggregate amount of servicing fees paid to the Master
Servicer and the Special Servicer, collectively and separately, during
the related Collection Period;
(xix) a brief description of any material waiver, modification or
amendment of any Loan entered into by the Master Servicer or Special
Servicer pursuant to Section 3.20 during the related Collection Period;
(xx) current and cumulative outstanding Advances with respect to
the Mortgage Pool and with respect to each Loan Group;
(xxi) current prepayments and curtailments;
(xxii) the number and aggregate principal balance of Mortgage
Loans as to which foreclosure proceedings have been commenced as to the
related Mortgaged Property;
(xxiii) the ratings from all Rating Agencies for all Classes of
Certificates;
(xxiv) the CMSA Reconciliation of Funds Report;
(xxv) the Class A-2FL Available Funds and the Class A-MFL
Available Funds for such Distribution Date;
(xxvi) LIBOR as calculated for the related Distribution Date and
the next succeeding Distribution Date;
(xxvii) the amounts received and paid in respect of the Class
A-2FL Swap Contract and the Class A-MFL Swap Contract;
(xxviii) identification of any Rating Agency Trigger Event or
Swap Default as of the close of business on the last day of the
immediately preceding calendar month with respect to the Class A-2FL Swap
Contract or the Class A-MFL Swap Contract, as applicable;
(xxix) the amount of any (A) payment by the A-2FL Swap
Counterparty or the Class A-MFL Swap Counterparty, as applicable, as a
termination payment, (B) payment in connection with the acquisition of a
replacement interest rate swap contract and (C) collateral posted in
connection with any Rating Agency Trigger Event; and
(xxx) the amount of, and identification of, any interest due
thereon (including without limitation, any termination payment received
in connection with the Class A-2FL Swap Contract or Class A-MFL Swap
Contract, as applicable).
Any item of information disclosed to the Trustee by the Master
Servicer pursuant to Section 3.19(a) since the preceding Distribution Date (or,
in the case of the initial Distribution Date, since the Closing Date) shall be
made available with the Distribution Date Statement.
In the case of information furnished pursuant to clauses (i),
(ii) and (iii) of this Section 4.02(a), the amounts shall be expressed as a
dollar amount in the aggregate for all Certificates of each applicable Class and
per Single Certificate. Except with respect to the Certificate Factor (required
to be reported by clause (xvii) of this Section 4.02(a)), financial information
reported by the Trustee to the Certificateholders pursuant to this Section 4.02
shall be expressed as a dollar amount rounded to the nearest whole cent. Absent
actual knowledge of an error therein, the Trustee shall have no obligation to
recompute, recalculate or verify any information provided to it by the Master
Servicer or Special Servicer. The calculations by the Trustee contemplated by
this Section 4.02 shall, in the absence of manifest error, be presumptively
deemed to be correct for all purposes hereunder.
The Trustee shall be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Distribution Date Statement and may affix
thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party hereto).
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a Regular Certificate a statement containing the
information as to the applicable Class set forth in clauses (i), (ii) and (iii)
of this Section 4.02(a), aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder, together with such
other information as the Trustee determines to be necessary to enable
Certificateholders to prepare their tax returns for such calendar year. Such
obligation of the Trustee shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Trustee
pursuant to any requirements of the Code as from time to time are in force.
Upon filing with the IRS, the REMIC Administrator shall furnish
to the Holders of the Class R-I and Class R-II Certificates the IRS Form 1066
and shall furnish their respective Schedules Q thereto at the times required by
the Code or the IRS, and shall provide from time to time such information and
computations with respect to the entries on such forms as any Holder of the
Class R-I and Class R-II Certificates may reasonably request.
The Trustee will make available each month, to the general
public, the Distribution Date Statement (and any additional files containing the
same information in an alternative format) via the Trustee's Website. In
addition, the Trustee will make available to the general public each month the
Servicer Reports, the CMSA Loan Setup File and the Trustee's Reports on the
Trustee's Website. In addition, the Trustee will make available, as a
convenience for interested parties (and not in furtherance of the distribution
of the Base Prospectus and the Prospectus Supplement under the securities laws),
this Agreement, the Base Prospectus and the Prospectus Supplement via the
Trustee's Website. The Trustee will also make available copies of the
Depositor's registration statement and any other materials the Depositor files
with the Securities and Exchange Commission, including distribution reports on
Form 10-D, annual reports on Form 10-K, current reports on Form 8-K and
amendments to these reports available through this website promptly upon filing.
The Trustee shall have the right to change the way the monthly statements to
Certificateholders are distributed in order to make such distribution more
convenient and/or more accessible to the above parties and the Trustee shall
provide timely and adequate notification to all above parties regarding any such
changes. For assistance with the above-referenced services, interested parties
may call (000) 000-0000. The Trustee will make no representations or warranties
as to the accuracy or completeness of such documents and will assume no
responsibility therefor. In addition, upon authorization of the Depositor, that
is hereby given, the Trustee shall make available to Bloomberg, L.P., Xxxxx,
LLC, Intex Solutions, Inc. and Standard & Poor's Conquest or such other vendors
as chosen by the Depositor, including Reuters, all electronic reports delivered
or made available pursuant to Section 4.02 of this Agreement to the
Certificateholders using a format mutually acceptable to such vendors and the
Trustee.
In connection with providing access to the Trustee's Website, the
Trustee may require registration and the acceptance of a disclaimer. The Trustee
shall not be liable for the dissemination of the information in accordance
herewith.
(b) By 12:00 noon (New York City time) on the third Business Day
following each Determination Date (or with respect to the CMSA Loan Periodic
Update File, by 2:00 p.m. (New York City time) on the second Business Day
following each Determination Date), the Master Servicer shall deliver to the
Trustee, in a computer-readable medium downloadable by the Trustee, each of the
files and reports comprising the CMSA Investor Reporting Package (other than the
CMSA Bond Level File and the CMSA Collateral Summary File, which are prepared by
the Trustee), each reflecting information as of the close of business on such
Determination Date, in a mutually agreeable electronic format. The CMSA Loan
Periodic Update File contained in the CMSA Investor Reporting Package and any
written information supplemental thereto shall include such information with
respect to the Mortgage Loans that is reasonably required by the Trustee for
purposes of making the calculations and preparing the reports for which the
Trustee is responsible pursuant to Section 4.01, this Section 4.02, Section 4.04
or any other section of this Agreement, as set forth in reasonable written
specifications or guidelines issued by the Trustee from time to time. Such
information may be delivered by the Master Servicer to the Trustee by telecopy
or in such electronic or other form as may be reasonably acceptable to the
Trustee and the Master Servicer.
The Special Servicer shall from time to time (and, in any event,
as may be reasonably required by the Master Servicer) provide the Master
Servicer with such information in its possession regarding the Specially
Serviced Loans and REO Properties as may be necessary for the Master Servicer to
prepare each report and any supplemental information to be provided by the
Master Servicer to the Trustee.
Notwithstanding the foregoing, the failure of the Master Servicer
or the Special Servicer to disclose any information otherwise required to be
disclosed pursuant to Section 4.02(a) or this Section 4.02(b) shall not
constitute a breach of Section 4.02(a) or of this Section 4.02(b) to the extent
the Master Servicer or the Special Servicer so fails because such disclosure, in
the reasonable belief of the Master Servicer or the Special Servicer, as the
case may be, would violate any applicable law or any provision of a loan
document prohibiting disclosure of information with respect to the Loans or the
Mortgaged Properties, would constitute a waiver of the attorney-client privilege
on behalf of the Trust or would otherwise materially harm the Trust Fund. The
Master Servicer or the Special Servicer may affix to any information provided by
it any disclaimer it deems appropriate in its reasonable discretion (without
suggesting liability on the part of any other party hereto).
(c) Not later than 2:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Master Servicer, the
following reports (or data fields required for the Master Servicer to produce
such reports) with respect to the Specially Serviced Loans and any REO
Properties, providing the required information as of such Determination Date:
(i) a CMSA Property File; and (ii) a CMSA Special Servicer Loan File. In
addition, the Special Servicer shall from time to time provide the Master
Servicer with such information in the Special Servicer's possession regarding
the Specially Serviced Loans and REO Properties as may be requested by the
Master Servicer and is reasonably necessary for the Master Servicer to prepare
each report and any supplemental information required to be provided by the
Master Servicer to the Trustee.
(d) Notwithstanding anything herein to the contrary, the failure
of the Master Servicer or Special Servicer to disclose any information otherwise
required to be disclosed by this Section 4.02 shall not constitute a breach of
this Section 4.02 to the extent the Master Servicer or Special Servicer so fails
because such disclosure, in the reasonable belief of the Master Servicer or the
Special Servicer as the case may be, would violate any applicable law or any
provision of a loan document prohibiting disclosure of information with respect
to the Loans or Mortgaged Properties or would constitute a waiver of the
attorney-client privilege on behalf of the Trust. The Master Servicer and
Special Servicer may disclose any such information or any additional information
to any Person so long as such disclosure is consistent with applicable law, the
related loan documents and the Servicing Standard. The Master Servicer or the
Special Servicer may affix to any information provided by it any disclaimer it
deems appropriate in its reasonable discretion (without suggesting liability on
the part of any other party hereto).
(e) If the Master Servicer or the Special Servicer is required to
deliver any statement, report or information under any provision of this
Agreement (other than reports to be delivered to the Trustee, which shall be
delivered directly to the Trustee in a mutually agreeable electronic format),
the Master Servicer or the Special Servicer, as the case may be, may satisfy
such obligation by (x) physically delivering a paper copy of such statement,
report or information, (y) delivering such statement, report or information in a
commonly used electronic format or (z) making such statement, report or
information available on the Master Servicer's internet website, unless this
Agreement expressly specifies a particular method of delivery.
Section 4.03 P&I Advances.
(a) On each Master Servicer Remittance Date, the Master Servicer
shall in the case of all Mortgage Loans other than a Mortgage Loan included in a
Serviced Whole Loan, either (i) deposit into the Distribution Account from its
own funds an amount equal to the aggregate amount of P&I Advances, if any, to be
made in respect of the related Distribution Date, (ii) apply amounts held in the
Certificate Account for future distribution to Certificateholders in subsequent
months in discharge of any such obligation to make P&I Advances, or (iii) make
P&I Advances in the form of any combination of (i) and (ii) aggregating the
total amount of P&I Advances to be made; provided that if Late Collections of
any of the delinquent principal and/or interest in respect of which it is to
make P&I Advances on any Master Servicer Remittance Date are then on deposit in
the Certificate Account, the Master Servicer shall use such Late Collections
(net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable
therefrom) to make such P&I Advances. With respect to each Mortgage Loan
included in a Serviced Whole Loan, on each Master Servicer Remittance Date, the
Master Servicer shall either (i) deposit into the related Serviced Whole Loan
Custodial Account from its own funds an amount equal to the aggregate amount of
P&I Advances, if any, to be made in respect of the related Distribution Date on
the Mortgage Loan included in such Serviced Whole Loan, (ii) subject to the
terms of the related Intercreditor Agreement, apply amounts held in the related
Serviced Whole Loan Custodial Account for future distribution in subsequent
months in discharge of any such obligation to make P&I Advances, or (iii) make
P&I Advances in the form of any combination of (i) and (ii) aggregating the
total amount of P&I Advances to be made; provided that if Late Collections of
any of the delinquent principal and/or interest in respect of which it is to
make P&I Advances on any Master Servicer Remittance Date are then on deposit in
the related Serviced Whole Loan Custodial Account, the Master Servicer shall use
such Late Collections (net of any Master Servicing Fees, Liquidation Fees and
Workout Fees payable therefrom and any portion thereof required to be paid to
the related Companion Loan Holder in the case of a Serviced Whole Loan under the
related Intercreditor Agreement) to make such P&I Advances. Any amounts held in
the Certificate Account or if a Serviced Whole Loan is involved, the related
Serviced Whole Loan Custodial Account, for future distribution and so used to
make P&I Advances (other than the Late Collections of the delinquent principal
and/or interest contemplated by the proviso to the preceding sentence) shall be
appropriately reflected in the Master Servicer's records and replaced by the
Master Servicer by deposit into the Certificate Account or, if a Serviced Whole
Loan is involved, the related Serviced Whole Loan Custodial Account, on or
before the next succeeding Determination Date (to the extent not previously
replaced through the deposit of Late Collections of the delinquent principal
and/or interest in respect of which such P&I Advances were made). If, as of 3:00
p.m., New York City time, on any Master Servicer Remittance Date, the Master
Servicer shall not have made any P&I Advance required to be made on such date
pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee
the requisite Officer's Certificate and documentation related to a determination
of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of
such failure to a Servicing Officer of the Master Servicer by facsimile
transmission sent to telecopy no. (000) 000-0000 (or such alternative number
provided by the Master Servicer to the Trustee in writing) and by telephone at
telephone no. (000) 000-0000 (or such alternative number provided by the Master
Servicer to the Trustee in writing) as soon as possible, but in any event before
4:00 p.m., New York City time, on such Master Servicer Remittance Date. If,
after such notice, the Trustee does not receive the full amount of such P&I
Advances by the close of business (New York City time) on such Master Servicer
Remittance Date, then (i) unless the Trustee determines that such Advance would
be a Nonrecoverable P&I Advance if made or the Trustee shall make, by 11:00 a.m.
on the Distribution Date or in any event by such time as shall be required to
make the required distribution on such Distribution Date, the portion of such
P&I Advances that was required to be, but was not, made by the Master Servicer
on such Master Servicer Remittance Date and (ii) such failure shall constitute
an Event of Default on the part of the Master Servicer. The making of an Advance
by a fiscal agent appointed by the Trustee pursuant to Section 8.06 shall not be
an Event of Default with respect to the Trustee. For the avoidance of doubt,
neither the Master Servicer nor the Trustee shall be required to make a P&I
Advance on any Companion Loan.
(b) The aggregate amount of P&I Advances to be made in respect of
the Loans (including, without limitation, Balloon Loans that are included in the
Trust Fund delinquent as to their respective Balloon Payments) and any REO Loans
for any Distribution Date shall equal, subject to subsection (c) of this Section
4.03, the aggregate of all Monthly Payments (other than Balloon Payments) and
any Assumed Monthly Payments, in each case net of related Master Servicing Fees
and, if applicable, any Non-Serviced Mortgage Loan Primary Servicing Fee payable
hereunder, that were due or deemed due, as the case may be, in respect thereof
on their respective Due Dates during the related Collection Period and that were
not paid by or on behalf of the related Mortgagors or otherwise collected as of
the close of business on the Business Day before the Master Servicer Remittance
Date; provided that if an Appraisal Reduction Amount exists with respect to any
Required Appraisal Serviced Loan, then, in the event of subsequent delinquencies
thereon, the interest portion of the P&I Advance in respect of such Required
Appraisal Serviced Loan or, in the case of a Mortgage Loan included in a
Serviced Whole Loan which is a Required Appraisal Serviced Loan, the related
Mortgage Loan, as the case may be, for the related Distribution Date shall be
reduced (it being herein acknowledged that there shall be no reduction in the
principal portion of such P&I Advance) to equal the product of (i) the amount of
the interest portion of such P&I Advance for such Mortgage Loan for such
Distribution Date without regard to this proviso, multiplied by (ii) a fraction,
expressed as a percentage, the numerator of which is equal to the Stated
Principal Balance of such Mortgage Loan immediately prior to such Distribution
Date, net of the related Appraisal Reduction Amount, if any, allocable to such
Mortgage Loan and the denominator of which is equal to the Stated Principal
Balance of such Required Appraisal Serviced Loan immediately prior to such
Distribution Date; provided, further, the Master Servicer shall not advance a
Prepayment Premium. With respect to a Mortgage Loan related to a Non-Serviced
Whole Loan, if any "Appraisal Reduction Amount" (or similarly defined amount)
for such Non-Serviced Whole Loan applicable to such Mortgage Loan under the
related Non-Serviced Loan Pooling Agreement exists, the interest portion of the
P&I Advance with respect to such Mortgage Loan shall be reduced to equal the
product of (A) the amount of the interest portion of such P&I Advance for such
Mortgage Loan without regard to such Appraisal Reduction Amount by (B) a
fraction expressed as a percentage, the numerator of which is equal to the
Stated Principal Balance of such Mortgage Loan immediately prior to such
Distribution Date, net of the related Appraisal Reduction Amount allocable to
such Mortgage Loan, and the denominator of which is equal to the Stated
Principal Balance of such Mortgage Loan immediately prior to such Distribution
Date.
(c) Notwithstanding anything herein to the contrary, no P&I
Advance shall be required to be made hereunder if such P&I Advance would, if
made, constitute a Nonrecoverable P&I Advance. In addition, with respect to the
Mortgage Loans, other than Mortgage Loans included in a Serviced Whole Loan,
Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a)
out of general collections on the Mortgage Pool on deposit in the Certificate
Account. With respect to a Mortgage Loan included in a Serviced Whole Loan,
Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f).
The determination by the Master Servicer or the Trustee that it has made a
Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if
made, would constitute a Nonrecoverable P&I Advance, or any such determination
made by the Special Servicer, shall be evidenced by an Officer's Certificate
delivered promptly (and, in any event, in the case of a proposed P&I Advance by
the Master Servicer, no less than five Business Days prior to the related Master
Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby),
the Depositor, the Rating Agencies, the Directing Certificateholder and the
related Companion Loan Holder and any Controlling Holder, as applicable (in the
case of a Serviced Whole Loan), setting forth the basis for such determination,
together with (such determination is prior to the liquidation of the related
Loan or REO Property) a copy of an Appraisal of the related Mortgaged Property
or REO Property, as the case may be, which shall have been performed within the
12 months preceding such determination, and further accompanied by any other
information that the Master Servicer or the Special Servicer may have obtained
that supports such determination. The Trustee shall deliver such Officer's
Certificate as soon as practicable after its determination that such P&I Advance
would be nonrecoverable. If such an Appraisal shall not have been required and
performed pursuant to the terms of this Agreement, the Master Servicer may,
subject to its reasonable and good faith determination that such Appraisal will
demonstrate the nonrecoverability of the related Advance, obtain an Appraisal
for such purpose at the expense of the Trust out of general collections. The
Trustee shall be entitled to rely on any determination of nonrecoverability that
may have been made by the Master Servicer with respect to a particular P&I
Advance, and the Master Servicer and the Trustee shall be entitled to rely on
any determination of nonrecoverability that may have been made by the Special
Servicer with respect to a particular P&I Advance in the case of Specially
Serviced Loans.
(d) As and to the extent permitted by Section 3.05(a) or Section
3.05(f) with respect to a Serviced Whole Loan or any portion thereof, the Master
Servicer and the Trustee shall be entitled to receive interest at the
Reimbursement Rate in effect from time to time, accrued on the amount of each
P&I Advance made thereby (out of its own funds), to the extent that such P&I
Advance relates to a Past Grace Period Serviced Loan when made, or remains
outstanding when such Serviced Loan becomes a Past Grace Period Serviced Loan,
in which case such interest shall begin to accrue when such Serviced Loan
becomes a Past Grace Period Serviced Loan, for so long as such P&I Advance is
outstanding (or, in the case of Advance Interest payable to the Master Servicer,
if earlier, until the Late Collection of the delinquent principal and/or
interest in respect of which such P&I Advance was made has been received by the
Master Servicer). Such interest will be paid: first, out of any Default Charges
as set forth in Section 3.27; and second, at any time coinciding with or
following the reimbursement of such P&I Advance, out of general collections on
the Mortgage Loans and any REO Properties on deposit in the Certificate Account
or if a Serviced Whole Loan is involved, out of general collections on deposit
in the related Serviced Whole Loan Custodial Account. As and to the extent
provided by Section 3.05(a) or Section 3.05(f) with respect to a Serviced Whole
Loan, the Master Servicer shall reimburse itself or the Trustee, as appropriate,
for any P&I Advance made thereby as soon as practicable after funds available
for such purpose are deposited into the Certificate Account or, if a Serviced
Whole Loan is involved, are deposited into the related Serviced Whole Loan
Custodial Account, and in no event shall interest accrue in accordance with this
Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection
had been received as of the related date on which such P&I Advance was made.
Interest accrued on any P&I Advance made under this Section 4.03 with respect
to: (A) a Serviced Whole Loan which is a Pari Passu Whole Loan shall be payable
(unless required to be paid to the related Companion Loan Holder under any
Intercreditor Agreement): (i) first, out of the pro rata portion of Default
Charges collected on or in respect of the Mortgage Loan related to such Serviced
Whole Loan during the same Collection Period in which such P&I Advance is
reimbursed, (ii) second, to the extent that the Default Charges described in the
immediately preceding clause (i) are insufficient, but only if such P&I Advance
is being reimbursed at the same time or if such P&I Advance has been previously
reimbursed, out of such Mortgage Loan's pro rata portion of any other
collections that were made on or in respect of allocable to such Mortgage Loan
related to such Serviced Whole Loan, and (iii) third, solely with respect to
such Serviced Whole Loan, to the extent that Default Charges or other
collections described in the immediately preceding clauses (i) and (ii) are
insufficient, but only if such P&I Advance is being reimbursed at the same time
or if such Advances has been previously reimbursed, out of general collections
on or in respect of the Mortgage Loans, or (B) a Serviced Whole Loan which is an
A/B Whole Loan shall be payable (unless required to be paid to the related
Companion Loan Holder under any Intercreditor Agreement): (i) first, out of
Default Charges collected on or in respect of the related Companion Loan, during
the 12-month period in which such Advance is reimbursed, (ii) second, out of
Default Charges collected on or in respect of the related Mortgage Loan, as
applicable, during the same Collection Period in which such P&I Advance is
reimbursed, (iii) third, to the extent that the Default Charges described in the
immediately preceding clause (i) and (ii) are insufficient, but only if such P&I
Advance is being reimbursed at the same time or if such P&I Advance has been
previously reimbursed, out of any other collections that were made on or in
respect of such A/B Whole Loan, and (iv) solely with respect to such A/B Whole
Loan, to the extent that Default Charges or other collections described in the
immediately preceding clauses (i), (ii) and (iii) are insufficient, but only if
such P&I Advance is being reimbursed at the same time or if such Advances has
been previously reimbursed, out of general collections on or in respect of the
Mortgage Loans.
(e) With regard to such P&I Advances, the Master Servicer, the
Special Servicer or the Trustee shall account for that part of the P&I Advances
that is attributable to Past Grace Period Serviced Loans, and that part of the
P&I Advances that is attributable to Within Grace Period Loans.
(f) With respect to each Whole Loan with a Pari Passu Companion
Loan that will not be included in the Trust Fund, if (i) the Master Servicer or
any master servicer for a securitization relating to the Pari Passu Companion
Loan determines that a proposed P&I Advance, if made, would be a Nonrecoverable
P&I Advance or an outstanding P&I Advance is or would be nonrecoverable and (ii)
notice of such determination has been delivered by the Master Servicer or the
Master Servicer receives written notice of such determination by any other
master servicer for a securitization relating to the Pari Passu Companion Loan,
none of the Master Servicer, the Trustee, the other master servicers or any
other party to the related pooling and servicing agreement may make any
additional P&I Advances with respect to the related Mortgage Loan or the Pari
Passu Companion Loan until the Master Servicer has consulted with the other
applicable master servicers and they agree that circumstances with respect to
the related Whole Loan have changed such that a proposed future P&I Advance
would not be a Nonrecoverable Advance. Notwithstanding the foregoing, the Master
Servicer will not be required to abide by any determination of
non-recoverability by another master servicer that is not an "approved" master
servicer by any of the Rating Agencies rating the Certificates.
(g) None of the Master Servicer or the Trustee shall advance any
amount due to be paid by the Class A-2FL Swap Counterparty or the Class A-MFL
Swap Counterparty for distribution to the Class A-2FL Certificates or the Class
A-MFL Certificates, respectively. In addition, for the avoidance of doubt, if
funds allocated to payment of interest distributions on the Class A-2FL Regular
Interest or the Class A-MFL Regular Interest are insufficient to pay the Accrued
Certificate Interest on the Class A-2FL Regular Interest or the Class A-MFL
Regular Interest, as applicable, the amount paid to the Class A-2FL Swap
Counterparty or the Class A-MFL Swap Counterparty, as applicable, will be
reduced and interest paid by the Class A-2FL Swap Counterparty or the Class
A-MFL Swap Counterparty, as applicable, under the Class A-2FL Swap Contract or
the Class A-MFL Swap Contract, as applicable, will be reduced, on a
dollar-for-dollar basis, by an amount equal to the difference between the amount
actually paid to the Class A-2FL Swap Counterparty or the Class A-MFL Swap
Counterparty, as applicable, and the amount that would have been paid if the
funds allocated to payment of interest distributions on the Class A-2FL Regular
Interest or the Class A-MFL Regular Interest, as applicable, had been sufficient
to pay the Accrued Certificate Interest on the Class A-2FL Regular Interest or
the Class A-MFL Regular Interest, as applicable.
Section 4.04 Allocation of Realized Losses and Additional Trust
Fund Expenses.
(a) On each Distribution Date, the Trustee shall determine the
amount, if any, by which (i) the then aggregate Certificate Principal Balance of
the Sequential Pay Certificates and the Class A-2FL Regular Interest and Class
A-MFL Regular Interest exceeds (ii) the aggregate Stated Principal Balance of
the Mortgage Pool that will be outstanding immediately following such
Distribution Date (provided, however, for purposes of this calculation, any
Workout-Delayed Reimbursement Amounts paid from principal collections on the
Mortgage Pool shall for purposes of this calculation be deemed to still be
outstanding unless the related Unliquidated Advance has been determined to be a
Nonrecoverable Advance on the related Serviced Loan or a Final Determination has
been made with respect to the related Serviced Loan or the related Mortgage Loan
or REO Property is otherwise liquidated or disposed). If such excess does exist,
then the Class Principal Balances of the Class S Certificates, Class Q
Certificates, Class P Certificates, Class O Certificates, Class N Certificates,
Class M Certificates, Class L Certificates, Class K Certificates, Class J
Certificates, Class H Certificates, Class G Certificates, Class F Certificates,
Class E Certificates, Class D Certificates, Class C Certificates, Class B
Certificates, Class A-J Certificates, Class A-M Certificates, Class A-MF
Certificates and Class A-M Regular Interest shall be reduced sequentially, in
that order in each case, until such excess or the related Class Principal
Balance is reduced to zero (whichever occurs first); provided that the Class A-M
Certificates, Class A-MF Certificates and Class A-M Regular Interest are pro
rata. If, after the foregoing reductions, the amount described in clause (i) of
the second preceding sentence still exceeds the amount described in clause (ii)
of the second preceding sentence, then the respective Class Principal Balances
of the Class A-1 Certificates, Class A-2 Certificates, Class A-2FL Regular
Interest, Class A-3 Certificates, Class A-AB Certificates, Class A-4
Certificates, Class A-5 Certificates and Class A-1A Certificates shall be
reduced, pro rata, in accordance with the relative sizes of the then outstanding
Class Principal Balances of such Classes of Certificates, until such excess or
each such Class Principal Balance is reduced to zero (whichever occurs first).
Such reductions in the Class Principal Balances of the respective Classes of the
Sequential Pay Certificates and the Class A-2FL Regular Interest and Class A-MFL
Regular Interest shall be deemed to be allocations of Realized Losses and
Additional Trust Fund Expenses, to the extent not covered by reductions in
distributions of interest pursuant to the allocations set forth in Section
4.01(b).
(i) With respect to any Distribution Date, any Realized Losses or
Additional Trust Fund Expenses allocated pursuant to Section 4.04(a) with
respect to such Distribution Date shall reduce the REMIC I Principal
Balances of the REMIC I Regular Interests as a write-off and shall be
allocated among the REMIC I Regular Interests in the same priority as the
Class of Corresponding Certificates.
Section 4.05 Interest Reserve Account.
The Master Servicer shall establish and maintain the Interest
Reserve Account in the Trustee's name for the benefit of the Certificateholders.
The Interest Reserve Account shall be established and maintained, at all times,
as an Eligible Account, which the Master Servicer may (but shall not be
obligated to) invest only in Permitted Investments in accordance with Section
3.06. On each Master Servicer Remittance Date occurring in February and each
Master Servicer Remittance Date in January of any year that is not a leap year
(unless, in either case, the related Distribution Date is the final Distribution
Date), the Master Servicer shall withdraw from the Certificate Account, in
respect of each Mortgage Loan that accrues interest on an Actual/360 Basis, and
deposit into the Interest Reserve Account, an amount equal to one day's interest
at the related Net Mortgage Rate on the Stated Principal Balance of each such
Mortgage Loan or as of the Distribution Date in the month preceding the month in
which such Master Servicer Remittance Date occurs, to the extent a Monthly
Payment or P&I Advance is made in respect thereof (all amounts so deposited in
any consecutive January (if applicable) and February, "Withheld Amounts"). On
the Master Servicer Remittance Date in March (or February, if the related
Distribution Date is the final Distribution Date)of each calendar year, the
Master Servicer shall remit to the Trustee for deposit into the REMIC I
Distribution Account all Withheld Amounts on deposit in the Interest Reserve
Account with respect to Mortgage Loans.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
(a) The Certificates will be substantially in the respective
forms annexed hereto as Exhibits A-1 through and including A-31; provided that
any of the Certificates may be issued with appropriate insertions, omissions,
substitutions and variations, and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
The Certificates will be issuable in registered form only; provided, however, in
accordance with Section 5.03 beneficial ownership interests in the Regular
Certificates shall initially be held and transferred through the book-entry
facilities of the Depository. The Class A-1, Class A-2, Class A-2FL, Class A-3,
Class A-AB, Class A-4, Class A-5, Class A-1A, Class A-M, Class A-MF, Class A-MFL
and Class A-J Certificates will be issuable in denominations corresponding to
initial Certificate Principal Balances as of the Closing Date of not less than
$10,000 and any whole dollar denomination in excess thereof; the Class XW
Certificates will be issuable in denominations corresponding to initial Notional
Balances as of the Closing Date of not less than $1,000,000 and any whole dollar
denomination in excess thereof; and the Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class P, Class Q and Class S will be issuable in denominations corresponding to
initial Certificate Principal Balances as of the Closing Date of not less than
$100,000 and any whole dollar denomination in excess thereof; provided, however,
a single Certificate of any Class thereof may be issued in a different
denomination. Each Class of REMIC Residual Certificates will be issuable only in
a denomination representing the entire Class. With respect to any Certificate or
any beneficial interest in a Certificate, the "Denomination" thereof shall be
(i) the amount (a) set forth on the face thereof, (b) set forth on a schedule
attached thereto or (c) in the case of any beneficial interest in a Book-Entry
Certificate, the interest of the related Certificate Owner in the applicable
Class of Certificates as reflected on the books and records of the Depository or
related Participants, as applicable, (ii) expressed in terms of initial
Certificate Principal Balance or initial Notional Amount, as applicable, and
(iii) be in an authorized denomination, as set forth above. The Book-Entry
Certificates will be issued as one or more certificates registered in the name
of a nominee designated by the Depository, and Certificate Owners will hold
interests in the Book-Entry Certificates through the book-entry facilities of
the Depository in the minimum Denominations and aggregate Denominations as set
forth in the above. No Certificate Owner of a Book-Entry Certificate of any
Class thereof will be entitled to receive a Definitive Certificate representing
its interest in such Class, except as provided in Section 5.03. Unless and until
Definitive Certificates are issued in respect of a Class of Book-Entry
Certificates, beneficial ownership interests in such Class of Certificates will
be maintained and transferred on the book-entry records of the Depository and
Depository Participants, and all references to actions by Holders of such Class
of Certificates will refer to action taken by the Depository upon instructions
received from the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures and,
except as otherwise set forth herein, all references herein to payments,
notices, reports and statements to Holders of such Class of Certificates will
refer to payments, notices, reports and statements to the Depository or its
nominee as the registered Holder thereof, for distribution to the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee in its capacity as trustee hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Trustee shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication;
provided that the Certificates, issued on the Closing Date shall, in any event,
be dated the Closing Date.
(c) Any Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, or as may, consistently
herewith, be determined by the officers executing such Certificates, as
evidenced by their execution thereof.
Section 5.02 Registration of Transfer and Exchange of
Certificates.
(a) At all times during the term of this Agreement, there shall
be maintained at the office of the Certificate Registrar a Certificate Register
in which, subject to such reasonable regulations as the Certificate Registrar
(located as of the Closing Date at Xxxxx Fargo Center, Sixth and Marquette,
Minneapolis, Minnesota 55479-0113) may prescribe, the Certificate Registrar
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. The Trustee is hereby initially
appointed (and hereby agrees to act in accordance with the terms hereof) as
Certificate Registrar for the purpose of registering Certificates and transfers
and exchanges of Certificates as herein provided. The Trustee may appoint, by a
written instrument delivered to the Depositor, the Master Servicer, the Special
Servicer and the REMIC Administrator, any other bank or trust company to act as
Certificate Registrar under such conditions as the predecessor Certificate
Registrar may prescribe, provided that the Trustee shall not be relieved of any
of its duties or responsibilities hereunder as Certificate Registrar by reason
of such appointment. If the Trustee resigns or is removed in accordance with the
terms hereof, the successor trustee shall immediately succeed to its
predecessor's duties as Certificate Registrar. The Depositor, the Master
Servicer, the Special Servicer and the REMIC Administrator shall have the right
to inspect the Certificate Register or to obtain a copy thereof at all
reasonable times, and to rely conclusively upon a certificate of the Certificate
Registrar as to the information set forth in the Certificate Register. Upon
request, the Trustee shall promptly inform, or cause the Certificate Registrar
to inform, the Master Servicer or the Special Servicer, as applicable, of the
identity of all Certificateholders of the Controlling Class.
If Certificateholders representing more than 25% of any Class of
Certificates (hereinafter referred to as "applicants") apply in writing to the
Trustee, and such application states that the applicants desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates and is accompanied by a copy of the communication that
such applicants propose to transmit, then the Trustee shall, within five
Business Days after the receipt of such application, afford such applicants
access during normal business hours to the most recent list of
Certificateholders held by the Trustee. If the Trustee is no longer the
Certificate Registrar and such a list is as of a date more than 90 days prior to
the date of receipt of such applicants' request, the Trustee shall promptly
request from the Certificate Registrar a current list as provided above, and
shall afford such applicants access to such list promptly upon receipt.
Every Certificateholder, by receiving and holding such list,
agrees with the Certificate Registrar and the Trustee that neither the
Certificate Registrar nor the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. If a transfer (other than one by the
Depositor to an Affiliate thereof or the initial transfer thereof) is to be made
in reliance upon an exemption from the Securities Act, and under the applicable
state securities laws, then either: (i) the Certificate Registrar shall require
that the transferee deliver to the Certificate Registrar an investment
representation letter (the "Investment Representation Letter") substantially in
the form of Exhibit B attached hereto, which Investment Representation Letter
shall certify, among other things, that the transferee is an institutional
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act (an "Institutional Accredited Investor")
or a "qualified institutional buyer" as defined in Rule 144A under the
Securities Act (a "Qualified Institutional Buyer"), and the Certificate
Registrar may also require that the transferee deliver to the Certificate
Registrar an Opinion of Counsel if such transferee is not a Qualified
Institutional Buyer or (ii) if the certifications described in the preceding
clause (i) cannot be provided, (a) the Certificate Registrar shall require an
Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from registration or
qualification under the Securities Act, applicable state securities laws and
other relevant laws, which Opinion of Counsel shall not be an expense of the
Trust Fund, the Certificate Registrar, the Depositor or the Trustee and (b) the
Certificate Registrar shall require the transferor to execute a certification in
form and substance satisfactory to the Certificate Registrar setting forth the
facts surrounding such transfer; provided, however, a transfer of a
Non-Registered Certificate of any such Class may be made to a trust if the
transferor provides to the Certificate Registrar and to the Trustee a
certification that interests in such trust may only be transferred subject to
requirements substantially to the effect set forth in this Section 5.02. The
Master Servicer will furnish, or cause to be furnished, upon the request of any
Holder of Non-Registered Certificates, to a prospective purchaser of such
Non-Registered Certificates who is a Qualified Institutional Buyer, such
information relating to the Mortgage Loans that are in its possession and as is
specified in paragraph (d)(4) of Rule 144A with respect to the Trust Fund,
unless, at the time of such request, the entity with respect to which such
information is to be provided is subject to the reporting requirements of
Section 15(d) of the Exchange Act. None of the Depositor, the Trustee, the
Master Servicer, the Special Servicer or the Certificate Registrar is obligated
to register or qualify any Class of Non-Registered Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under this Agreement to permit the transfer of any Non-Registered
Certificate without registration or qualification. Any Holder of a
Non-Registered Certificate desiring to effect such a transfer shall, and does
hereby agree to, indemnify the Depositor, the Trustee, the Master Servicer, the
Special Servicer and the Certificate Registrar against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws. Unless the Certificate Registrar determines otherwise in
accordance with applicable law and the rules and procedures of, or applicable
to, the Depository (the "Depository Rules"), transfers of a beneficial interest
in a Book-Entry Certificate representing an interest in a Non-Registered
Certificate that is not rated in one of the top four categories by a nationally
recognized statistical rating organization to (i) an Institutional Accredited
Investor will require delivery in the form of a Definitive Certificate and the
Certificate Registrar shall register such transfer only upon compliance with the
foregoing provisions of this Section 5.02(b) or (ii) a Qualified Institutional
Buyer may only be effectuated by means of an "SRO Rule 144A System" approved for
such purpose by the Commission.
(c) With respect to the ERISA Restricted Certificates and REMIC
Residual Certificates: no sale, transfer, pledge or other disposition by any
Holder of any such Certificate shall be made unless the Certificate Registrar
shall have received either (i) a representation letter from the proposed
purchaser or transferee of such Certificate substantially in the form of Exhibit
E attached hereto, to the effect that such proposed purchaser or transferee is
not (a) an employee benefit plan subject to the fiduciary responsibility
provisions of ERISA or a plan subject to Section 4975 of the Code, or a
governmental plan (as defined in Section 3(32) of ERISA) subject to any federal,
state or local law ("Similar Law") that is, to a material extent, similar to the
foregoing provisions of ERISA or the Code (each a "Plan") or (b) a person acting
on behalf of or using the assets of any such Plan (including an entity whose
underlying assets include Plan assets by reason of investment in the entity by
such Plan and the application of Department of Labor Regulation ss. 2510.3-101),
other than (except with respect to the REMIC Residual Certificate) an insurance
company using the assets of its general account under circumstances whereby the
purchase and holding of such Certificates by such insurance company would be
exempt from the prohibited transaction provisions of ERISA and the Code under
Prohibited Transaction Class Exemption 95-60 or (ii) except for the REMIC
Residual Certificates (which may not be transferred to a Holder who does not
make the representation described in clause (i)(a) or (i)(b)) of this Section
5.02(c), if such Certificate is presented for registration in the name of a
purchaser or transferee that is any of the foregoing, any Opinion of Counsel or
other certification as the Certificate Registrar may reasonably require and in
form and substance satisfactory to the Certificate Registrar and the Depositor
to the effect that the acquisition and holding of such Certificate by such
purchaser or transferee will not constitute or result in a non-exempt
"prohibited transaction" within the meaning of ERISA, Section 4975 of the Code
or any Similar Law, and will not subject the Trustee, the Certificate Registrar,
the Master Servicer, the Special Servicer, the Underwriters, the Placement Agent
or the Depositor to any obligation or liability (including obligations or
liabilities under ERISA, Section 4975 of the Code or any such Similar Law) in
addition to those set forth in this Agreement. The Certificate Registrar shall
not register the sale, transfer, pledge or other disposition of any such
Certificate unless the Certificate Registrar has received either the
representation letter described in clause (i) of this Section 5.02(c) or, with
respect to the ERISA Restricted Certificates, the Opinions of Counsel or other
certification described in clause (ii) of this Section 5.02(c). The costs of any
of the foregoing representation letters, certifications or Opinions of Counsel
shall not be borne by any of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Underwriters, the Placement Agent, the Certificate
Registrar or the Trust Fund. With respect to transfers of Book-Entry
Certificates only, to the extent the purchase or holding of a Certificate
described in this Section 5.02(c) would be restricted by ERISA, the Code or
Similar Law, each Certificate Owner of such Certificate shall be deemed to
represent that it is not a Person specified in clause (i)(a) or (i)(b) of this
Section 5.02(c) and therefore shall not be required pursuant to this Section
5.02(c) to deliver to the Certificate Registrar the representation letter in the
form of Exhibit E attached hereto described in clause (i) of this Section
5.02(c), or the Opinion of Counsel or other certification described in clause
(ii) of this Section 5.02(c). Any transfer, sale, pledge or other disposition of
any such Certificates that would constitute or result in a prohibited
transaction under ERISA, Section 4975 of the Code or any Similar Law, or would
otherwise violate the provisions of this Section 5.02(c) shall be deemed
absolutely null and void ab initio, to the extent permitted under applicable
law.
Each beneficial owner of a Class A-2FL or Class A-MFL Certificate
that is or is acting on behalf of a Plan will be deemed to represent that at
least one of Prohibited Transaction Class Exemption 84-14, 90-1, 91-38, 96-50 or
96-23 or a similar exemption under Similar Law will apply to its acquisition and
holding of its interest in the Class A-2FL or Class A-MFL Certificate.
Any transfer, sale, pledge or other disposition of any such
Certificates that would constitute or result in a prohibited transaction under
ERISA, Section 4975 of the Code or any Similar Law, or would otherwise violate
the provisions of this Section 5.02(c) shall be deemed absolutely null and void
ab initio, to the extent permitted under applicable law.
Each person owning a beneficial interest in a Certificate shall
be deemed to represent that neither such Person nor any owner of a five percent
or greater interest in such Person is an employer with employees covered by the
General Electric Pension Trust.
So long as any of the Class of Certificates remains outstanding,
the Master Servicer will make available, or cause to be made available, upon
request, to any Holder and any Person to whom any such Certificate of any such
Class of Certificates may be offered or sold, transferred, pledged or otherwise
disposed of by such Holder, information with respect to the Master Servicer, the
Special Servicer or the Mortgage Loans reasonably necessary to the provision of
an Opinion of Counsel described in this Section 5.02(c).
(d) (i) Each Person who has or who acquires any Ownership
Interest in a REMIC Residual Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Trustee under clause
(ii) of this Section 5.02(d) to deliver payments to a Person other than such
Person. The rights of each Person acquiring any Ownership Interest in a REMIC
Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership
Interest in a REMIC Residual Certificate shall be a Permitted
Transferee and shall promptly notify the Trustee and the REMIC
Administrator of any change or impending change in its status as
a Permitted Transferee.
(B) In connection with any proposed Transfer of any
Ownership Interest in a REMIC Residual Certificate (other than in
connection with the initial issuance thereof or the transfer
thereof among the Depositor and its Affiliates), the Certificate
Registrar shall require delivery to it, and shall not register
the Transfer of any REMIC Residual Certificate until its receipt
of, an affidavit and agreement substantially in the form attached
hereto as Exhibit C-1 (a "Transfer Affidavit and Agreement") from
the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among
other things, that such Transferee is a Permitted Transferee,
that it is not acquiring its Ownership Interest in the REMIC
Residual Certificate that is the subject of the proposed Transfer
as a nominee, trustee or agent for any Person that is not a
Permitted Transferee, that for so long as it retains its
Ownership Interest in a REMIC Residual Certificate it will
endeavor to remain a Permitted Transferee, and that it has
reviewed the provisions of this Section 5.02(d) and agrees to be
bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee under clause (B) of this
Section 5.02(d), if the Certificate Registrar has actual
knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of an Ownership Interest in a REMIC
Residual Certificate to such proposed Transferee shall be
effected.
(D) Except in connection with the initial issuance of the
REMIC Residual Certificates or any transfer thereof among the
Depositor and its Affiliates, each Person holding or acquiring
any Ownership Interest in a REMIC Residual Certificate shall
agree (1) to require a Transfer Affidavit and Agreement from any
prospective Transferee to whom such Person attempts to transfer
its Ownership Interest in such REMIC Residual Certificate and (2)
not to transfer its Ownership Interest in such REMIC Residual
Certificate unless it provides to the Certificate Registrar a
certificate substantially in the form attached hereto as Exhibit
C-2 stating that, among other things, it has no actual knowledge
that such prospective Transferee is not a Permitted Transferee.
(ii) If any purported Transferee shall become a Holder of a REMIC
Residual Certificate in violation of the provisions of this Section
5.02(d), then the last preceding Holder of such REMIC Residual
Certificate that was in compliance with the provisions of this Section
5.02(d) shall be restored, to the extent permitted by law, to all rights
as Holder thereof retroactive to the date of registration of such
Transfer of such REMIC Residual Certificate. None of the Trustee, the
Master Servicer, the Special Servicer, the REMIC Administrator or the
Certificate Registrar shall be under any liability to any Person for any
registration of Transfer of a REMIC Residual Certificate that is in fact
not permitted by this Section 5.02(d) or for making any payments due on
such Certificate to the Holder thereof or for taking any other action
with respect to such Holder under the provisions of this Agreement.
(iii) The REMIC Administrator shall make available to the IRS and
those Persons specified by the REMIC Provisions all information necessary
to compute any tax imposed as a result of the Transfer of an Ownership
Interest in a REMIC Residual Certificate to any Person who is a
Disqualified Organization or a nominee, agent or middleman thereof,
including the information described in Treasury Regulations Sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions"
of such REMIC Residual Certificate. The Person holding such Ownership
Interest shall be responsible for the reasonable compensation of the
REMIC Administrator for providing such information.
(e) Subject to the restrictions on transfer and exchange set
forth in this Section 5.02, the Holder of any Definitive Certificate may
transfer or exchange the same in whole or in part (with a Denomination equal to
any authorized denomination) by surrendering such Certificate at the Certificate
Registrar's office or at the office of any successor Certificate Registrar or
transfer agent appointed by the Certificate Registrar, together with an
instrument of assignment or transfer (executed by the Holder or its duly
authorized attorney), in the case of transfer, and a written request for
exchange in the case of exchange. Subject to the restrictions on transfer set
forth in this Section 5.02 and Depository Rules, any Certificate Owner owning a
beneficial interest in a Non-Registered Certificate may cause the Certificate
Registrar to request that the Depository exchange such Certificate Owner's
beneficial interest in a Book-Entry Certificate for a Definitive Certificate or
Certificates. Following a proper request for transfer or exchange, the
Certificate Registrar shall, execute and deliver at such offices or at the
office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, a Definitive Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested.
(f) In the event a Responsible Officer of the Certificate
Registrar becomes aware that a Definitive Certificate or a beneficial interest
in a Book-Entry Certificate representing a Non-Registered Certificate is being
held by or for the benefit of a Person who is not an Institutional Accredited
Investor, or that such holding is unlawful under the laws of a relevant
jurisdiction, then the Certificate Registrar shall have the right to void such
transfer, if permitted under applicable law, or to require the investor to sell
such Definitive Certificate or beneficial interest in such Book-Entry
Certificate to an Institutional Accredited Investor within 14 days after notice
of such determination and each Certificateholder by its acceptance of a
Certificate authorizes the Certificate Registrar to take such action.
(g) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates. In addition, in connection with any transfer to an Institutional
Accredited Investor, the transferor shall reimburse the Trust Fund for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided herein) incurred by the Certificate
Registrar in connection with such transfer.
(i) Subsequent to the initial issuance of the Certificates, the
Trustee shall be responsible for the preparation of physical Certificates in
connection with any transfer or exchange; provided that the correct form of
Certificate of each Class shall be provided by the Depositor to the Trustee on
diskette on or about the Closing Date. All Certificates surrendered for transfer
and exchange shall be physically canceled by the Certificate Registrar, and the
Certificate Registrar shall hold or destroy such canceled Certificates in
accordance with its standard procedures.
(j) The Certificate Registrar shall be required to provide the
Depositor and the REMIC Administrator with an updated copy of the Certificate
Register on or about January 1 of each year, commencing January 1, 2008, and
shall be required to provide the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator with an updated copy of the Certificate
Register at other times promptly upon written request therefor.
(k) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee (or such Certificate Owner) to confirm that,
it has (i) sole investment discretion with respect to each such account and (ii)
full power to make the acknowledgments, representations, warranties,
certification and agreements with respect to each such account as set forth in
subsections (b), (c) and (d), as applicable, of this Section 5.02.
(l) Each investor in the Certificates will be deemed, by its
investment in such Certificates, to represent that neither (a) the investor nor
(b) any owner of a five percent or greater interest in the investor is an
employer with employees covered by the General Electric Pension Trust. Any
transfer in violation of this deemed representation will be void ab initio.
(m) Any Holder of an interest in a Regulation S Global
Certificate in respect of the Certificates shall have the right, upon prior
written notice to the Depositor, the Trustee, Euroclear or Clearstream, as
applicable, and the Depository, in the form of the Exchange Certificate attached
hereto as Exhibit Q, to exchange all or a portion of such interest for an
equivalent interest in a Domestic Global Certificate in connection with a
transfer of its interest therein to a transferee that is eligible to hold an
interest in a Domestic Global Certificate as set forth herein. Any Holder of an
interest in a Domestic Global Certificate shall have the right, upon prior
written notice to the Depositor, the Trustee, the Depository and Euroclear or
Clearstream, as applicable, in the form of the Exchange Certificate attached
hereto as Exhibit O or Exhibit P, as applicable, to exchange all or a portion of
such interest for an equivalent interest in a Regulation S Global Certificate in
connection with a transfer of its interest therein to a transferee that is
eligible to hold an interest in a Regulation S Global Certificate as set forth
herein. The Exchange Certificate shall specify the denomination of the
Certificates to be exchanged. The Exchange Certificate shall also contain a
representation that the transfer is being made in a transaction meeting the
requirements of Rule 144A or Regulation S, as the case may be. Following receipt
of any Exchange Certificate by the Depositor or the Trustee, (i) the Trustee
shall endorse the schedule to any Global Certificate representing the
Certificate or Certificates being exchanged to reduce the stated principal or
notional amount of such Global Certificate by the denominations of the
Certificate or Certificates for which such exchange is to be made, and (ii) the
Trustee shall endorse the schedule to any Global Certificate representing the
Certificate or Certificates for which such exchange is to be made to increase
the stated principal or notional amount of such Global Certificate by the
denominations of the Certificate or Certificates being exchanged therefor. The
form of the Exchange Certificate shall be available from the Trustee.
(n) No transfer of any Class A-2FL or Class A-MFL Certificate
presented or surrendered for registration of transfer or exchange shall be made
unless the transfer or exchange is accompanied by a written instrument of
transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and all appropriate
attachments) or W-9 in form satisfactory to the Trustee, duly executed by such
Certificateholder or his attorney duly authorized in writing (with copies
directly from such Certificateholders to the Class A-2FL Swap Counterparty or
Class A-MFL Swap Counterparty, as applicable). The Trustee shall promptly
forward any such IRS Form received by the Trustee to the Class A-2FL Swap
Counterparty or Class A-MFL Swap Counterparty, as applicable. Each such Holder
of a Class A-2FL or Class A-MFL Certificate, by its purchase of such a
Certificate, shall be deemed to consent to any IRS Form being so forwarded.
Section 5.03 Book-Entry Certificates.
(a) The Class A-1, Class A-2, Class A-2FL, Class A-3, Class A-AB,
Class A-4, Class A-5, Class A-1A, Class A-M, Class A-MF, Class A-MFL, Class A-J,
Class XW, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q and Class S
Certificates shall initially be issued as one or more Certificates registered in
the name of the Depository or its nominee and, except as provided in subsection
(c) of this Section 5.03, transfer of such Certificates may not be registered by
the Certificate Registrar unless such transfer is to a successor Depository that
agrees to hold such Certificates for the respective Certificate Owners with
Ownership Interests therein. Such Certificate Owners shall hold and transfer
their respective Ownership Interests in and to such Certificates through the
book-entry facilities of the Depository and, except as provided in subsection
(c) of this Section 5.03, shall not be entitled to fully registered, physical
Certificates (each a "Definitive Certificate") in respect of such Ownership
Interests. All transfers by Certificate Owners of their respective Ownership
Interests in the Book-Entry Certificates shall be made in accordance with the
procedures established by the Depository Participant or brokerage firm
representing each such Certificate Owner (in addition to the procedures
established under this Agreement and, if applicable, those of Euroclear and
Clearstream). Each Depository Participant shall only transfer the Ownership
Interests in the Book-Entry Certificates of Certificate Owners it represents or
of brokerage firms for which it acts as agent in accordance with the
Depository's normal procedures. Neither the Certificate Registrar nor the
Trustee shall have any responsibility to monitor or restrict the transfer of
Ownership Interests in Certificates through the book-entry facilities of the
Depository, Euroclear or Clearstream.
(b) The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the REMIC Administrator and the Certificate Registrar may for all
purposes, including the making of payments due on the Book-Entry Certificates,
deal with the Depository as the authorized representative of the Certificate
Owners with respect to such Certificates for the purposes of exercising the
rights of Certificateholders hereunder. The rights of Certificate Owners with
respect to the Book-Entry Certificates shall be limited to those established by
law and agreements between such Certificate Owners and the Depository
Participants and brokerage firms representing such Certificate Owners. Multiple
requests and directions from, and votes of, the Depository as Holder of the
Book-Entry Certificates with respect to any particular matter shall not be
deemed inconsistent if they are made with respect to different Certificate
Owners. The Trustee may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date. If any party hereto requests from
the Depository a list of the Depository Participants in respect of any Class or
Classes of the Book-Entry Certificates, the cost thereof shall be borne by the
party on whose behalf such request is made (but in no event shall any such cost
be borne by the Trustee).
(c) If (i)(A) the Depositor advises the Trustee and the
Certificate Registrar in writing that the Depository is no longer willing or
able to properly discharge its responsibilities with respect to any Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor notifies the Trustee, the Certificate Registrar
and DTC of its intent to terminate the book-entry system through DTC and, upon
receipt of notice of such intent from DTC, the Depository Participants holding
beneficial interests in the Book-Entry Certificates agree to initiate such
termination. Upon surrender to the Certificate Registrar of any Class of the
Book-Entry Certificates by the Depository, accompanied by registration
instructions for registration of transfer, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, the appropriate Definitive
Certificates to the Certificate Owners identified in such instructions. None of
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or the Certificate Registrar shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE CERTIFICATE REGISTRAR FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(f) If a Holder of a Definitive Certificate wishes at any time to
transfer such Certificate to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Book-Entry Certificate, such transfer may
be effected only in accordance with Depository Rules and this Section 5.03(f).
Upon receipt by the Certificate Registrar at the Certificate Registrar's office
of (i) the Definitive Certificate to be transferred with an assignment and
transfer pursuant to this Section 5.03(f), (ii) written instructions given in
accordance with Depository Rules directing the Certificate Registrar to credit
or cause to be credited to another account a beneficial interest in the related
Book-Entry Certificate, in an amount equal to the Denomination of the Definitive
Certificate to be so transferred, (iii) a written order given in accordance with
the Depository Rules containing information regarding the account to be credited
with such beneficial interest, (iv) if the affected Certificate is a
Non-Registered Certificate an Investment Representation Letter from the
transferee to the effect that such transferee is a Qualified Institutional
Buyer, and (v) if delivery is to be taken in the form of a beneficial interest
in the Regulation S Global Certificate, a Regulation S Certificate, the
Certificate Registrar shall cancel such Definitive Certificate, execute and
deliver a new Definitive Certificate for the Denomination of the Definitive
Certificate not so transferred, registered in the name of the Holder or the
Holder's transferee (as instructed by the Holder), and the Certificate Registrar
shall instruct the Depository or the custodian holding such Book-Entry
Certificate on behalf of the Depository to increase the Denomination of the
related Book-Entry Certificate by the Denomination of the Definitive Certificate
to be so transferred, and to credit or cause to be credited to the account of
the Person specified in such instructions a corresponding Denomination of such
Book-Entry Certificate.
Each Regulation S Certificate shall include a certification to
the effect that: (i) (1) the offer of the Certificates was not made to a person
in the United States; and (2) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable, and the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; or (ii) with respect to
transfers made in reliance on Rule 144 under the Securities Act, that the
Certificates being transferred are not "restricted securities" as defined in
Rule 144 under the Securities Act.
(g) The Certificates initially sold in offshore transactions in
reliance on Regulation S shall be represented by a single Regulation S Global
Certificate for each such Class in fully registered form without interest
coupons, which will be deposited with the Trustee and registered in the name of
Cede & Co. as nominee of DTC. Beneficial interests in each Regulation S Global
Certificate may be held only through Euroclear or Clearstream.
No interest in the Regulation S Global Certificates may be held
by or transferred to a U.S. Person (as defined in Regulation S) except for
exchanges for a beneficial interest in a Domestic Global Certificate or a
Definitive Certificate as described in Section 5.02(m). Any beneficial interest
in a Regulation S Global Certificate that is transferred to a U.S. Person that
is an Institutional Accredited Investor (that is not a Qualified Institutional
Buyer) is required to be delivered in the form of a Definitive Certificate and
shall cease to be an interest in such Regulation S Global Certificate and,
thereafter, will be subject to all transfer restrictions and other procedures
applicable to Certificates in definitive form described in Section 5.03.
Notwithstanding the foregoing, no transfer of a beneficial interest in a
Regulation S Global Certificate to a Definitive Certificate pursuant to this
Section 5.03 shall be made prior to the Release Date. Certificates evidenced by
Regulation S Global Certificates shall be subject to certain restrictions on
transfer as set forth in Section 5.02 and shall bear a legend regarding such
restrictions described herein.
(h) Notwithstanding anything herein to the contrary regarding
restriction on the issuance of Definitive Certificates on the Closing Date, the
Class E Certificates may be issued as Definitive Certificates on the Closing
Date (subject to the receipt of the Investment Representation Letter
substantially in the form of Exhibit B attached hereto pursuant to Section
5.02(b)). The transfer and exchange of the Class E Certificates so issued shall,
thereafter, be made in accordance with the procedures for Definitive
Certificates (and exchange of Definitive Certificate for Global Certificates)
set forth in Section 5.02(b) and Section 5.02(e).
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Trustee and the Certificate Registrar such security or
indemnity as may reasonably be required by them to save each of them harmless,
then, in the absence of actual notice to the Trustee or the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser, the
Trustee shall execute and the Certificate Registrar shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and like Percentage
Interest. Upon the issuance of any new Certificate under this Section 5.04, the
Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee and the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section 5.04 shall constitute complete and
indefeasible evidence of ownership in the applicable REMIC created hereunder, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.05 Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 4.01
and for all other purposes whatsoever, and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Certificate Registrar or any agent of any of them shall be affected by notice to
the contrary.
Section 5.06 Certification by Certificate Owners.
(a) Each Certificate Owner is hereby deemed by virtue of its
acquisition of an Ownership Interest in the Book-Entry Certificates to agree to
comply with the applicable transfer requirements of Sections 5.02(b) and
5.02(c).
(b) To the extent that under the terms of this Agreement, it is
necessary to determine whether any Person is a Certificate Owner, the Trustee
shall make such determination based on a certificate of such Person that shall
specify, in reasonable detail satisfactory to the Trustee, the Class and
Certificate Principal Balance or Certificate Notional Amount, as the case may
be, of the Book-Entry Certificate beneficially owned, the value of such Person's
interest in such Certificate and any intermediaries through which such Person's
Ownership Interest in such Book-Entry Certificate is held; provided, however,
the Trustee shall not knowingly recognize such Person as a Certificate Owner if
such Person, to the knowledge of a Responsible Officer of the Trustee, acquired
its Ownership Interest in a Book-Entry Certificate in violation of Section
5.02(b) and/or Section 5.02(c), or if such Person's certification that it is a
Certificate Owner is in direct conflict with information obtained by the Trustee
from the Depository, Depository Participants, and/or indirect participating
brokerage firms for which a Depository Participant acts as agent, with respect
to the identity of a Certificate Owner. The Trustee shall exercise its
reasonable discretion in making any determination under this Section 5.06(b) and
shall afford any Person providing information with respect to its beneficial
ownership of any Certificates an opportunity to resolve any discrepancies
between the information provided and any other information available to the
Trustee.
Section 5.07 Regarding the Identification of Certain
Certificateholders.
For purposes of determining the identity of the Holders of the
Non-Registered Certificates (except a Class R-I or Class R-II Certificate) to
whom certain reports and other information are required to be delivered
hereunder, the Trustee and the Master Servicer may rely, with respect to any
such Certificates outstanding in book-entry form, on a certification, given to
the Trustee and provided to the Master Servicer, by any Person that such person
is such a holder entitled to receive such reports or information hereunder. With
respect to the Registered Certificates and the Class R-I and Class R-II
Certificates, from time to time upon the request of the Master Servicer, the
Trustee shall provide the Master Servicer with a list of the Certificateholders
recorded in the Certificate Register.
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER
AND THE REMIC ADMINISTRATOR
Section 6.01 Liability of the Depositor, the Master Servicer, the
Special Servicer and the REMIC Administrator.
The Depositor, the Master Servicer, the Special Servicer and the
REMIC Administrator shall be liable in accordance herewith only to the extent of
the respective obligations specifically imposed upon and undertaken by the
Depositor, the Master Servicer, the Special Servicer and the REMIC Administrator
herein.
Section 6.02 Merger, Consolidation or Conversion of the
Depositor, the Master Servicer, the Special Servicer or the REMIC Administrator.
(a) Subject to the following paragraph, the Depositor, the Master
Servicer, the Special Servicer and the REMIC Administrator each will keep in
full effect its existence, rights and franchises as a corporation or other
business organization under the laws of the jurisdiction of its organization,
and each will obtain and preserve its qualification to do business as a foreign
corporation or otherwise in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of this Agreement,
the Certificates or any of the Mortgage Loans and to perform its respective
duties under this Agreement.
(b) The Depositor, the Master Servicer, the Special Servicer and
the REMIC Administrator each may be merged or consolidated with or into any
Person, or transfer all or substantially all of its assets (which, as to the
Master Servicer and the Special Servicer, may be limited to all or substantially
all of its assets relating to the business of mortgage loan servicing) to any
Person, in which case any Person resulting from any merger or consolidation to
which the Depositor, the Master Servicer, the Special Servicer or the REMIC
Administrator shall be a party, or any Person succeeding to the business of the
Depositor, the Master Servicer, the Special Servicer or the REMIC Administrator,
shall be the successor of the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator, as the case may be, hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided,
however, no successor or surviving Person shall succeed to the rights of the
Master Servicer or the Special Servicer, unless such succession will not result
in any downgrade, qualification (if applicable) or withdrawal of the rating then
assigned by any Rating Agency to any Class of Certificates or Companion Loan
Securities (as confirmed in writing).
In accordance with Section 11.02, The Master Servicer and the
Special Servicer and such successor or surviving Person shall notify the
Depositor and the Trustee of any such merger, conversion or consolidation at
least two Business Days prior to the effective date thereof and shall provide
the Depositor and the Trustee with all information reasonably requested by the
Depositor to comply with its reporting obligation under Item 6.02 of Form 8-K
not later than the effective date of such merger, conversion or consolidation.
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and Others.
(a) None of the Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator or any director, officer, employee or agent of
any of the foregoing shall be under any liability to the Trust, the
Certificateholders or any Companion Loan Holder (in the case of a Whole Loan)
for any action taken, or not taken, in good faith pursuant to this Agreement, or
for errors in judgment; provided, however, this provision shall not protect the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator or
any such other Person against any breach of a representation or warranty made
herein, or against any expense or liability specifically required to be borne
thereby pursuant to the terms hereof, or against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of obligations or duties hereunder, or by reason of negligent
or reckless disregard of such obligations and duties. The Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and any director,
manager, member, officer, employee or agent (including Sub-Servicers) of any of
the foregoing may rely in good faith on any document of any kind that, prima
facie, is properly executed and submitted by any Person respecting any matters
arising hereunder. The Depositor, the Master Servicer, the Special Servicer, the
REMIC Administrator and any director, manager, member, officer, employee or
agent (including Sub-Servicers) of any of the foregoing shall be indemnified and
held harmless by the Trust against any loss, liability or expense, including
reasonable attorneys' fees, expenses of counsel and expenses of litigation,
incurred in connection with any claims or legal action relating to this
Agreement, the Certificates or any asset of the Trust, other than any loss,
liability or expense: (i) specifically required to be borne by such Person
pursuant to the terms hereof, including, without limitation, Section 10.01(h);
or (ii) that was incurred in connection with claims against such party resulting
from (A) any breach of a representation or warranty made herein by such party,
(B) willful misfeasance, bad faith, recklessness or negligence in the
performance of obligations or duties hereunder by such party, or from negligent
or reckless disregard of such obligations or duties, or (C) any violation by
such party of any state or federal securities law. None of the Depositor, the
Master Servicer, the Special Servicer or the REMIC Administrator shall be under
any obligation to appear in, prosecute or defend any legal action unless such
action is related to its respective duties under this Agreement and, except in
the case of a legal action contemplated by Section 3.22, in its opinion does not
involve it in any ultimate expense or liability; provided, however, the
Depositor, the Master Servicer, the Special Servicer or the REMIC Administrator
may in its discretion undertake any such action that it may deem necessary or
desirable with respect to the enforcement and/or protection of the rights and
duties of the parties hereto and the interests of the Certificateholders, or if
a Serviced Whole Loan is affected, the interests of the Certificateholders and
the related Companion Loan Holder (as a collective whole and, in the case of a
Serviced Whole Loan that is an A/B Whole Loan, taking into account the
subordination of the related Companion Loan); provided, however, if a Serviced
Whole Loan and/or a Companion Loan Holder is involved, such expenses, costs and
liabilities shall be payable out of the related Serviced Whole Loan Custodial
Account and shall also be payable out of the Certificate Account if (A) amounts
on deposit in the related Serviced Whole Loan Custodial Account are insufficient
therefor and (B) either (i) such expenses, costs and liabilities do not relate
solely to such Companion Loan or (ii) if such expenses, costs and liabilities
relate solely to such Companion Loan, only to the extent of deposits in the
Certificate Account related directly to the Serviced Whole Loan. In such event,
the legal expenses and costs of such action, and any liability resulting
therefrom, shall be expenses, costs and liabilities of the Trust, and the
Depositor, the Master Servicer, the Special Servicer and the REMIC Administrator
each shall be entitled to the direct payment of such expenses or to be
reimbursed therefor from the Certificate Account as provided in Section 3.05(a)
(or, if and to the extent the matter relates solely to the Companion Loan
related to a Serviced Whole Loan, out of the related Serviced Whole Loan
Custodial Account and out of the Certificate Account to the extent of deposits
therein related directly to the Serviced Whole Loan). For the avoidance of
doubt, such expenses, costs and liabilities shall not be deemed to relate solely
to the Companion Loan related to a Serviced Whole Loan for the sole reason that
the related action was instituted by or against the related Companion Loan
Holder.
(b) The ChampionsGate Hotel Master Servicer, the ChampionsGate
Hotel Special Servicer, the ChampionsGate Hotel Depositor and the ChampionsGate
Hotel Trustee, and any of their respective directors, officers, employees or
agents (collectively, the "ChampionsGate Hotel Indemnified Parties"), shall be
indemnified by the Trust and held harmless against the Trust's pro rata share
(subject to the ChampionsGate Hotel Intercreditor Agreement) of any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable legal fees
and related costs, judgments, and any other costs, liabilities, fees and
expenses incurred in connection with any legal action relating to the
ChampionsGate Hotel Pari Passu Whole Loan under the ChampionsGate Hotel Pooling
Agreement or this Agreement (but excluding any such losses allocable to the
ChampionsGate Hotel Pari Passu Companion Loan), reasonably requiring the use of
counsel or the incurring of expenses other than any losses incurred by reason of
any ChampionsGate Hotel Indemnified Party's willful misfeasance, bad faith or
negligence in the performance of duties or by reason of negligent disregard of
obligations and duties under the ChampionsGate Hotel Pooling Agreement. The
indemnification provided herein shall survive the termination of this Agreement
and the termination or resignation of the ChampionsGate Hotel Master Servicer,
the ChampionsGate Hotel Trustee and the ChampionsGate Hotel Special Servicer.
(c) The One Park Avenue Master Servicer, One Park Avenue Special
Servicer, One Park Avenue Depositor and the One Park Avenue Trustee, and any of
their respective directors, officers, employees or agents (collectively, the
"One Park Avenue Indemnified Parties"), shall be indemnified by the Trust and
held harmless against the Trust's pro rata share (subject to the One Park Avenue
Intercreditor Agreement) of any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable legal fees and related costs, judgments, and any
other costs, liabilities, fees and expenses incurred in connection with any
legal action relating to the One Park Avenue Whole Loan under the One Park
Avenue Pooling Agreement or this Agreement (but excluding any such losses
allocable to any One Park Avenue Companion Loan), reasonably requiring the use
of counsel or the incurring of expenses other than any losses incurred by reason
of any One Park Avenue Indemnified Party's willful misfeasance, bad faith or
negligence in the performance of duties or by reason of negligent disregard of
obligations and duties under the One Park Avenue Pooling Agreement. The
indemnification provided herein shall survive the termination of this Agreement
and the termination or resignation of the Xxx Xxxx Xxxxxx Xxxxxx Xxxxxxxx, Xxx
Xxxx Xxxxxx Trustee and the One Park Avenue Special Servicer.
Section 6.04 Master Servicer, Special Servicer and REMIC
Administrator Not to Resign.
None of the Master Servicer, the Special Servicer or the REMIC
Administrator shall be permitted to resign from the obligations and duties
hereby imposed on it, except (i) upon the appointment of, and the acceptance of
such appointment by, a successor thereto that is reasonably acceptable to the
Trustee and the Directing Certificateholder and the receipt by the Trustee of
written confirmation from each and every Rating Agency to the effect that such
resignation and appointment will not result in the downgrade, qualification (if
applicable) or withdrawal of any rating then assigned by such Rating Agency to
any Class of Certificates or Companion Loan Securities or (ii) upon
determination that such obligations and 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, the other activities
of the Master Servicer, Special Servicer or REMIC Administrator, as the case may
be, so causing such a conflict being of a type and nature carried on by the
Master Servicer, Special Servicer or REMIC Administrator, as the case may be, at
the date of this Agreement. Any such determination of the nature described in
clause (ii) of the preceding sentence permitting the resignation of the Master
Servicer, the Special Servicer or the REMIC Administrator, as the case may be,
shall be evidenced by an Opinion of Counsel to such effect, which shall be
rendered by Independent counsel, be addressed and delivered to the Trustee and
the Rating Agencies and be paid for by the resigning party. No such resignation
for either reason shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
hereunder. All costs and expenses of the Trustee and the Trust (including,
without limitation, any costs or expenses of any party hereto reimbursable out
of the Trust Fund) in connection with any such resignation (including, without
limitation, any requisite transfer of servicing) shall be paid for, as incurred,
by the resigning party.
Consistent with the foregoing, none of the Master Servicer, the
Special Servicer or the REMIC Administrator shall be permitted, except as
expressly provided herein, to assign or transfer any of its rights, benefits or
privileges hereunder to any other Person, or delegate to or subcontract with, or
authorize or appoint any other Person to perform any of the duties, covenants or
obligations to be performed by it hereunder. If, pursuant to any provision
hereof, the duties of the Master Servicer, the Special Servicer or the REMIC
Administrator are transferred to a successor thereto, then, subject to Section
3.11(a) and Section 3.22, the entire amount of compensation payable to the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, pursuant hereto shall thereafter be payable to such successor.
Section 6.05 Rights of the Depositor and the Trustee in Respect
of the Master Servicer, the Special Servicer and the REMIC Administrator.
The Master Servicer, the Special Servicer and the REMIC
Administrator each shall afford the Depositor and the Trustee, upon reasonable
notice, during normal business hours access to all records maintained by the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, in respect of its rights and obligations hereunder and access to such of
its officers as are responsible for such obligations. Upon reasonable request,
the Master Servicer, the Special Servicer and the REMIC Administrator each shall
furnish the Depositor and the Trustee with its most recent financial statements,
or in the case of the Special Servicer, publicly available financial statements
of its corporate parent, and such other publicly available information directly
related to the servicing of the Loans or to its ability to perform its
obligations hereunder as it possesses, and that it is not prohibited by law or,
to the extent applicable, binding obligations to third parties with respect to
confidentiality from disclosing, regarding its business, affairs, property and
condition, financial or otherwise; provided that neither the Depositor nor the
Trustee may disclose the contents of any information that is not available
publicly to non-affiliated third parties (other than their duly authorized
representatives, which include without limitation attorneys and/or accountants)
unless the Depositor or the Trustee, as applicable, is required to do so under
applicable securities law or is compelled to do so as a matter of law. The
Depositor may, but is not obligated to, enforce the obligations of the Master
Servicer, the Special Servicer and the REMIC Administrator hereunder and may,
but is not obligated to, perform, or cause a designee to perform, any defaulted
obligation of the Master Servicer, the Special Servicer or the REMIC
Administrator hereunder or, in connection with a default thereby, exercise the
rights of the Master Servicer, the Special Servicer or the REMIC Administrator
hereunder; provided, however, none of the Master Servicer, the Special Servicer
or the REMIC Administrator shall be relieved of any of its obligations hereunder
by virtue of such performance by the Depositor or its designee. The Depositor
shall not have any responsibility or liability for any action or failure to act
by the Master Servicer, the Special Servicer or the REMIC Administrator and is
not obligated to supervise the performance of the Master Servicer, the Special
Servicer or the REMIC Administrator under this Agreement or otherwise.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default.
(a) "Event of Default", wherever used herein, unless the context
otherwise requires, means any one of the following events:
(i) any failure by the Master Servicer (A) to deposit into the
Certificate Account or a Serviced Whole Loan Custodial Account any amount
required to be so deposited under this Agreement that continues
unremedied for three Business Days following the date on which such
deposit was first required to be made, but in no event later than the
Master Servicer Remittance Date before the related Distribution Date, or
(B) to deposit into, or to remit to the Trustee for deposit into, the
Distribution Account on any Master Servicer Remittance Date, the full
amount of any Master Servicer Remittance Amount and Withheld Amounts,
respectively, required to be so deposited or remitted under this
Agreement on such date; provided, that if the Master Servicer fails to
make any deposit contemplated by this Section 7.01(a)(i)(B), then the
Master Servicer shall pay to the Trustee, for the account of the Trustee,
interest on such late remittance at the Reimbursement Rate from and
including such Master Servicer Remittance Date to but excluding the
related Distribution Date; or
(ii) any failure by the Special Servicer to deposit into, or to
remit to the Master Servicer for deposit into, the Certificate Account or
a Serviced Whole Loan Custodial Account or the applicable REO Account any
amount required to be so deposited or remitted under this Agreement that
continues unremedied for two Business Days following the date on which
such deposit or remittance was first required to be made, but in no event
later than two Business Days before the related Distribution Date; or
(iii) any failure by the Master Servicer to remit to the Trustee
for deposit into the Distribution Account, on any Master Servicer
Remittance Date, the full amount of P&I Advances required to be made on
such date unless wired by 10:00 a.m. on the Distribution Date; provided,
that if the Master Servicer fails to make any deposit contemplated by
this Section 7.01(a)(iii), then the Master Servicer shall pay to the
Trustee, for the account of the Trustee, interest on such late remittance
at the Reimbursement Rate from and including such Master Servicer
Remittance Date to but excluding the related Distribution Date; or
(iv) any failure by the Master Servicer to timely make any
Servicing Advance required to be made by it pursuant to this Agreement,
which failure continues unremedied for a period of three Business Days
following the date on which notice shall have been given to the Master
Servicer by the Trustee or by any other party to this Agreement, as
provided in Section 3.11(f); or
(v) any failure by the Special Servicer to timely direct the
Master Servicer to make any Servicing Advance (including any Emergency
Advance) required to be made by the Master Servicer at its direction
pursuant to this Agreement, which failure is not remedied by providing
direction to the Master Servicer within three Business Days following the
date on which notice has been given to the Special Servicer by the
Trustee as provided in Section 3.11(f); or
(vi) any failure on the part of the Master Servicer or the
Special Servicer duly to observe or perform in any material respect any
other of the covenants or agreements thereof contained in this Agreement,
which failure continues unremedied for a period of 30 days after the date
on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by any other party hereto, or to the Master
Servicer or the Special Servicer, as the case may be, with a copy to each
other party hereto, by the Holders of Certificates entitled to at least
25% of the Voting Rights; provided, however, if such covenant or
agreement is capable of being cured and the Master Servicer or Special
Servicer, as applicable, is diligently pursuing such cure, such 30-day
period shall be extended for an additional 60 days; or
(vii) any failure on the part of the REMIC Administrator duly to
observe or perform in any material respect any of the covenants or
agreements thereof contained in this Agreement, which failure continues
unremedied for a period of 30 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to the REMIC Administrator by any other party hereto, or to the REMIC
Administrator, with a copy to each other party hereto, by the Holders of
Certificates entitled to at least 25% of the Voting Rights; provided,
however, if such covenant or agreement is capable of being cured and the
REMIC Administrator is diligently pursuing such cure, such 30-day period
shall be extended for an additional 60 days; or
(viii) any breach on the part of the Master Servicer, the Special
Servicer or the REMIC Administrator of any representation or warranty
thereof contained in this Agreement that materially and adversely affects
the interests of any Class of Certificateholders and that continues
unremedied for a period of 30 days after the date on which notice of such
breach, requiring the same to be remedied, shall have been given to the
Master Servicer, the Special Servicer or the REMIC Administrator, as the
case may be, by any other party hereto, or to the Master Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, with a
copy to each other party hereto, by the Holders of Certificates entitled
to at least 25% of the Voting Rights; provided, however, if such
representation or warranty is capable of being cured and the Master
Servicer or Special Servicer, as applicable, is diligently pursuing such
cure, such 30-day period shall be extended for an additional 60 days; or
(ix) 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 Master Servicer, the Special Servicer or the REMIC
Administrator and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(x) the Master Servicer, the Special Servicer or the REMIC
Administrator 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
(xi) the Master Servicer, the Special Servicer or the REMIC
Administrator shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment
of its obligations, or take any corporate action in furtherance of the
foregoing; or
(xii) Fitch provides notice to the Master Servicer or the Special
Servicer, as applicable, to the effect that the rating or ratings on one
or more Classes of Certificates will be the subject of a downgrade or
withdrawal, citing servicing concerns relating to the Master Servicer or
the Special Servicer, as the case may be, as the sole or a material
factor in such action; provided, however, the Master Servicer or Special
Servicer, as applicable shall have 60 days to resolve such matters to the
satisfaction of Fitch (or such longer time period as may be agreed in
writing by Fitch) prior to the downgrade of any Class of Certificates and
in such case, such notice from Fitch shall not be deemed to be an Event
of Default; or
(xiii) the Master Servicer shall no longer be rated "CMS3" or
higher by Fitch or the Special Servicer shall no longer be rated "CSS3"
or higher by Fitch, and, in each case, that rating is not restored within
60 days after the subject downgrade or withdrawal;
(xiv) Moody's provides notice to the Master Servicer or the
Special Servicer, as applicable, to the effect that the rating or ratings
on one or more Classes of Certificates will be the subject of a downgrade
or withdrawal, citing servicing concerns relating to the Master Servicer
or the Special Servicer, as the case may be, as the sole or a material
factor in such action; provided, however, the Master Servicer or Special
Servicer, as applicable shall have 60 days to resolve such matters to the
satisfaction of Moody's (or such longer time period as may be agreed in
writing by Moody's) prior to the downgrade of any Class of Certificates
and in such case, such notice from Moody's shall not be deemed to be an
Event of Default; or
(xv) either the Master Servicer or the Special Servicer is no
longer listed on S&P's Select Servicer List as a U.S. Commercial Mortgage
Master Servicer or a U.S. Commercial Mortgage Special Servicer, as
applicable, and is not relisted thereon within 60 days.
Each Event of Default listed as items (iv) through (xv) of this Section 7.01(a)
shall constitute an Event of Default only with respect to the relevant party;
provided that if a single entity acts or any two or more Affiliates act as
Master Servicer, Special Servicer and REMIC Administrator, or in any two or more
of the foregoing capacities, an Event of Default in one capacity (other than an
event described in clauses (xii) through (xv) of this Section 7.01(a)) will
constitute an Event of Default in each such capacity.
(b) If any Event of Default with respect to the Master Servicer
or the Special Servicer (in either case, for purposes of this Section 7.01(b),
the "Defaulting Party") shall occur and be continuing, then, and in each and
every such case, so long as the Event of Default shall not have been remedied,
the Depositor or the Trustee may, and (other than with respect to the Events of
Default listed in clauses (xii) through (xv) of Section 7.01(a)) at the written
direction of the Holders of Certificates entitled to at least 51% of the Voting
Rights, or if the relevant Event of Default is the one described in clause (ix)
through (xi) of subsection (a) of Section 7.01(a), the Trustee shall, terminate,
by notice in writing to the Defaulting Party (with a copy of such notice to each
other party hereto), all of the rights and obligations (subject to Section 3.11
and Section 6.03, accruing from and after such notice) of the Defaulting Party
under this Agreement and in and to the Loans and the proceeds thereof (other
than as a Holder of a Certificate or a Companion Loan Holder (in the case of a
Whole Loan)). With respect to each of Event of Default listed as clauses (xii)
through (xv) of Section 7.01(a), the Trustee shall provide written notice of
such Event of Default to each Certificateholder and request written direction of
such Certificateholders whether they desire to terminate the Defaulting Party;
if no such direction is received from the Directing Certificateholder or Holders
of Certificates entitled to vote at least 51% of the Voting Rights within ten
Business Days after delivery of such notice by the Trustee, and the Trustee has
not elected pursuant to the preceding sentence to terminate the Defaulting
Party, the Defaulting Party will not be terminated by reason of such Event of
Default. From and after the receipt by the Defaulting Party of such written
notice, all authority and power of the Defaulting Party under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Loans or otherwise, shall pass to and be vested in the
Trustee pursuant to and under this Section, and, without limitation, the Trustee
is hereby authorized and empowered to execute and deliver, on behalf of and at
the expense of the Defaulting Party, as attorney-in-fact or otherwise, any and
all documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Loans and related documents, or otherwise. The Master Servicer and the
Special Servicer each agree that, if it is terminated pursuant to this Section
7.01(b), it shall promptly (and in any event no later than ten Business Days
subsequent to its receipt of the notice of termination) provide the Trustee with
all documents and records reasonably requested thereby to enable the Trustee to
assume the Master Servicer's or Special Servicer's, as the case may be,
functions hereunder, and shall cooperate with the Trustee in effecting the
termination of the Master Servicer's or Special Servicer's, as the case may be,
responsibilities and rights hereunder, including, without limitation, the
transfer within two Business Days to the Trustee for administration by it of all
cash amounts that shall at the time be or should have been credited by the
Master Servicer to the Certificate Account, the Distribution Account, any
Servicing Account or any Reserve Account (if it is the Defaulting Party) or by
the Special Servicer to the REO Account, the Certificate Account, any Servicing
Account or any Reserve Account (if it is the Defaulting Party) or thereafter be
received with respect to the Loans and any REO Properties (provided, however,
the Master Servicer and the Special Servicer each shall, if terminated pursuant
to this Section 7.01(b) or Section 3.23, continue to be obligated for or
entitled to receive all amounts accrued or owing by or to it under this
Agreement on or prior to the date of such termination, whether in respect of
Advances or otherwise, and it and its directors, officers, employees and agents
shall continue to be entitled to the benefits of Section 6.03 notwithstanding
any such termination). All costs and expenses of the Trustee and the Trust
(including, without limitation, any costs and expenses of any party hereto
reimbursable out of the Trust Fund) in connection with the termination of the
Master Servicer or Special Servicer, as applicable, under this Section 7.01(b)
(including, without limitation, the requisite transfer of servicing) shall be
paid for, as incurred, by the Defaulting Party.
Notwithstanding the first paragraph of this Section 7.01(b) and
Section 7.04, if (i) an Event of Default on the part of the Master Servicer
remains unremedied and materially and adversely affects only a Securitized
Companion Loan (included in a Serviced Whole Loan), (ii) the Master Servicer
fails to make any payment on a Securitized Companion Loan (included in a
Serviced Whole Loan) by the third Business Day following the date required under
the terms of this Agreement, which failure has not been remedied or (iii) any
qualification, downgrade or withdrawal by any Rating Agency of any class of
Companion Loan Securities occurs solely as a result of an action of the Master
Servicer, then the Master Servicer may not be terminated but the holder of such
Securitized Companion Loan (included in a Serviced Whole Loan) or the related
trustee under the related Securitized Companion Loan Pooling Agreement, acting
at the direction of the related directing certificateholder for that
securitization, shall be entitled to direct the Trustee to require the Master
Servicer to appoint a sub-servicer solely with respect to the related Serviced
Whole Loan (or if the related Serviced Whole Loan is currently being
sub-serviced, to replace the current sub-servicer, but only if such current
sub-servicer is in default under the related sub-servicing agreement). The
appointment (or replacement) of a sub-servicer with respect to any Serviced
Whole Loan shall in any event be subject to confirmation from each rating agency
that such appointment would not result in the downgrade, withdrawal or
qualification of the then current ratings on any class of outstanding
Certificates and any class of Companion Loan Securities. A replacement
sub-servicer shall be selected jointly by the Directing Certificateholder and
the holder of the related Securitized Companion Loan (or the related directing
certificateholder, as applicable); provided that if the Directing
Certificateholder and the holder of the related Securitized Companion Loan (or
the related directing certificateholder) are not able to agree on a sub-servicer
within 45 days after the date on which the Trustee was directed to appoint a
sub-servicer or replace the current sub-servicer, such sub-servicer shall be
selected by the Directing Certificateholder. Any such sub-servicer under this
paragraph shall meet the eligibility requirements of Section 7.02 and the
eligibility requirements of the Securitized Companion Loan Pooling Agreement
related to the securitization of the related Securitized Companion Loan
(included in a Serviced Whole Loan). Any appointment of a sub-servicer in
accordance with this paragraph shall be subject to the receipt of a Rating
Agency confirmation with respect to the Certificates and the Companion Loan
Securities. In addition, if the Trustee appoints a sub-servicer solely with
respect to the related Serviced Whole Loan, the Master Servicer shall not be
liable for any losses incurred due to the actions of such sub-servicer.
(c) If any Event of Default with respect to the REMIC
Administrator shall occur and be continuing, then, and in each and every such
case, so long as the Event of Default shall not have been remedied, the
Depositor or the Trustee may, and at the written direction of the Holders of
Certificates entitled to at least 51% of the Voting Rights, the Trustee (or, if
the Trustee is also the REMIC Administrator, the Master Servicer) shall,
terminate, by notice in writing to the REMIC Administrator (with a copy to each
of the other parties hereto), all of the rights and obligations of the REMIC
Administrator under this Agreement. From and after the receipt by the REMIC
Administrator of such written notice (or if the Trustee is also the REMIC
Administrator, from and after such time as another successor appointed as
contemplated by Section 7.02 accepts such appointment), all authority and power
of the REMIC Administrator under this Agreement shall pass to and be vested in
the Trustee (or such other successor) pursuant to and under this Section 7.01,
and, without limitation, the Trustee (or such other successor) is hereby
authorized and empowered to execute and deliver, on behalf of and at the expense
of the REMIC Administrator, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination. The REMIC Administrator agrees promptly (and in any event no later
than ten Business Days subsequent to its receipt of the notice of the
termination) to provide the Trustee (or, if the Trustee is also the REMIC
Administrator, such other successor appointed as contemplated by Section 7.02)
with all documents and records requested thereby to enable the Trustee (or such
other successor) to assume the REMIC Administrator's functions hereunder, and to
cooperate with the Trustee (or such other successor) in effecting the
termination of the REMIC Administrator's responsibilities and rights hereunder
(provided, however, the REMIC Administrator shall continue to be obligated for
or entitled to receive all amounts accrued or owing by or to it under this
Agreement on or prior to the date of such termination, and it and its directors,
officers, employees and agents shall continue to be entitled to the benefits of
Section 6.03 notwithstanding any such termination).
(d) Notwithstanding Section 7.01(b), if the Master Servicer
receives a notice of termination under Section 7.01(b) solely due to an Event of
Default under Section 7.01(a)(xii) through (xiv) and if the Master Servicer
provides the Trustee with the appropriate "request for proposal" materials
within the five Business Days after such termination, then such Master Servicer
shall continue to serve as Master Servicer, if requested to do so by the
Trustee, and the Trustee shall promptly thereafter (using such "request for
proposal" materials provided by the terminated Master Servicer) solicit good
faith bids for the rights to master service the Loans under this Agreement from
at least three Persons qualified to act as Master Servicer hereunder in
accordance with Section 6.02 and Section 7.02 for which the Trustee has received
written confirmation that the appointment of such person would not result in the
downgrade, withdrawal or qualification of a current rating on any of the
Certificates and that are reasonably acceptable to the Directing
Certificateholder (any such Person so qualified, a "Qualified Bidder") or, if
three Qualified Bidders cannot be located, then from as many Persons as the
Trustee can determine are Qualified Bidders; provided that at the Trustee's
request, the terminated Master Servicer shall supply the Trustee with the names
of Persons from whom to solicit such bids; and provided, further, the Trustee
shall not be responsible if less than three or no Qualified Bidders submit bids
for the right to master service the Loans under this Agreement. Any "Qualified
Bidder" referenced hereunder shall be reasonably acceptable to the Directing
Certificateholder. The bid proposal shall require any Successful Bidder (as
defined below), as a condition of such bid, to enter into this Agreement as
successor Master Servicer, and to agree to be bound by the terms hereof, within
45 days after the termination of Master Servicer. The Master Servicer shall
continue to serve in such capacity hereunder until a successor thereto is
selected in accordance with this Section 7.01(d) or the expiration of 45 days
after the Master Servicer's receipt of notice of termination, whichever occurs
first. The Trustee shall solicit bids (i) on the basis of such successor Master
Servicer retaining all Sub-Servicers to continue the primary servicing of the
Loans pursuant to the terms of the respective Sub-Servicing Agreements and to
enter into a Sub-Servicing Agreement with the terminated Master Servicer to
service each of the Loans not subject to a Sub-Servicing Agreement at a
servicing fee rate per annum equal to the Master Servicing Fee Rate minus 2.5
basis points per Loan serviced (each, a "Servicing-Retained Bid") and (ii) on
the basis of terminating each Sub-Servicing Agreement and Sub-Servicer that it
is permitted to terminate in accordance with Section 3.22 (each, a
"Servicing-Released Bid"). The Trustee shall select the Qualified Bidder with
the highest cash Servicing-Retained Bid (or, if none, the highest cash
Servicing-Released Bid) (the "Successful Bidder") to act as successor Master
Servicer hereunder. The Trustee shall direct the Successful Bidder to enter into
this Agreement as successor Master Servicer pursuant to the terms hereof (and,
if the successful bid was a Servicing-Retained Bid, to enter into a
Sub-Servicing Agreement with the terminated Master Servicer as contemplated
above), no later than 45 days after the termination of the Master Servicer.
(e) Upon the assignment and acceptance of the master servicing
rights hereunder to and by the Successful Bidder, the Trustee shall remit or
cause to be remitted (i) if the successful bid was a Servicing-Retained Bid, to
the terminated Master Servicer the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
(f) If the Successful Bidder has not entered into this Agreement
as successor Master Servicer within 45 days after the Trustee was appointed as
successor Master Servicer or no Successful Bidder was identified within such
45-day period, the terminated Master Servicer shall reimburse the Trustee for
all reasonable "out-of-pocket" expenses incurred by the Trustee in connection
with such bid process and the Trustee shall have no further obligations under
this Section 7.01(f). The Trustee thereafter may act or may select a successor
to act as Master Servicer hereunder in accordance with Section 7.02.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer, the Special Servicer
or the REMIC Administrator resigns pursuant to clause (ii) of the first sentence
of Section 6.04 or receives a notice of termination pursuant to Section 7.01,
the Trustee shall be the successor in all respects to the Master Servicer, the
Special Servicer or (unless it has also been acting as such) the REMIC
Administrator, as the case may be, in its capacity as such under this Agreement
and the transactions set forth or provided for herein and shall be subject to
all the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, by the terms and provisions hereof,
including, without limitation, if the Master Servicer is the resigning or
terminated party, the Master Servicer's obligation to make P&I Advances;
provided that any failure to perform such duties or responsibilities caused by
the Master Servicer's, the Special Servicer's or the REMIC Administrator's, as
the case may be, failure to cooperate or to provide information or monies
required by Section 7.01 shall not be considered a default by the Trustee
hereunder. Neither the Trustee nor any other successor shall be liable for any
of the representations and warranties of the resigning or terminated party or
for any losses incurred by the resigning or terminated party pursuant to Section
3.06 hereunder nor shall the Trustee nor any other successor be required to
purchase any Loan hereunder. As compensation therefor, the Trustee shall be
entitled to all fees and other compensation (subject to Section 3.11) that the
resigning or terminated party would have been entitled to for future services
rendered if the resigning or terminated party had continued to act hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to so act,
or shall, if it is unable to so act, or is not approved by each and every Rating
Agency as an acceptable master servicer or special servicer, as the case may be,
of commercial mortgage loans; or if the Directing Certificateholder or if the
Holders of Certificates entitled to at least 51% of the Voting Rights so request
in writing to the Trustee; or if the REMIC Administrator is the resigning or
terminated party and the Trustee had been acting in such capacity, promptly
appoint, or petition a court of competent jurisdiction to appoint, any
established and qualified institution as the successor to the Master Servicer,
the Special Servicer or the REMIC Administrator, as the case may be, hereunder
in the assumption of all or any part of the responsibilities, duties or
liabilities of the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, hereunder; provided that, in the case of a
successor Master Servicer, such successor has been approved by the Directing
Certificateholder, which consent with respect to the Master Servicer shall not
be unreasonably withheld or delayed; provided that such appointment does not
result in the downgrading, qualification (if applicable) or withdrawal of any
rating then assigned by any Rating Agency to any Class of Certificates or
Companion Loan Securities (as evidenced by written confirmation thereof from
each Rating Agency); provided, further in the case of a resigning or terminated
Special Servicer, such appointment shall be subject to the rights of the
Majority Certificateholder of the Controlling Class to designate a successor
pursuant to Section 3.23. No appointment of a successor to the Master Servicer,
the Special Servicer or the REMIC Administrator hereunder shall be effective
until the assumption of the successor to such party of all its responsibilities,
duties and liabilities hereunder. Pending appointment of a successor to the
Master Servicer, the Special Servicer or the REMIC Administrator hereunder, the
Trustee shall act in such capacity as hereinabove provided. Notwithstanding the
above, the Trustee shall, if the Master Servicer is the resigning or terminated
party and the Trustee is prohibited by law or regulation from making P&I
Advances, promptly appoint any established mortgage loan servicing institution
that has a net worth of not less than $15,000,000 and is otherwise acceptable to
each Rating Agency (as evidenced by written confirmation therefrom to the effect
that the appointment of such institution would not cause the qualification,
downgrading or withdrawal of the then current rating on any Class of
Certificates or Companion Loan Securities), as the successor to the Master
Servicer hereunder in the assumption of all or any part of the responsibilities,
duties or liabilities of the Master Servicer hereunder (including, without
limitation, the obligation to make P&I Advances), which appointment will become
effective immediately. Subject to Section 3.11 and in connection with any such
appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on or in
respect of the Mortgage Loans or otherwise as it and such successor shall agree;
provided, however, no such compensation shall be in excess of that permitted the
resigning or terminated party hereunder. The Depositor, the Trustee, such
successor and each other party hereto shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession. Any
costs and expenses associated with the transfer of the foregoing functions under
this Agreement (other than the set-up costs of the successor) shall be borne by
the predecessor Master Servicer, Special Servicer or REMIC Administrator, as
applicable, and, if not paid by such predecessor Master Servicer, Special
Servicer or REMIC Administrator within 30 days of its receipt of an invoice
therefor, shall be an expense of the Trust; provided that such predecessor
Master Servicer, Special Servicer or REMIC Administrator shall reimburse the
Trust for any such expense so incurred by the Trust; and provided, further, if
the Trustee is directed to do so by the Directing Certificateholder, the Trustee
shall pursue any remedy against any party obligated to make such reimbursement.
Section 7.03 Form 8-K Information; Notification to
Certificateholders.
(a) The predecessor and successor Master Servicer shall each
provide the Depositor and the Trustee with all information required by the
Depositor to comply with its reporting obligation under Item 6.02 of Form 8-K
not later than the effective date of such appointment.
(b) Upon any resignation of the Master Servicer, the Special
Servicer or the REMIC Administrator pursuant to Section 6.04, any termination of
the Master Servicer, the Special Servicer or the REMIC Administrator pursuant to
Section 7.01 or any appointment of a successor to the Master Servicer, the
Special Servicer or the REMIC Administrator pursuant to Section 6.04 or Section
7.02, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register, the Class
A-2FL Swap Counterparty and the Class A-MFL Swap Counterparty.
(c) Not later than the later of (i) 60 days after the occurrence
of any event that constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after the Trustee has actual
knowledge, or would be deemed in accordance with Section 8.02(g) to have notice
of the occurrence of such an event, the Trustee shall transmit by mail to the
other non-defaulting parties hereto and all Certificateholders, the Class A-2FL
Swap Counterparty and the Class A-MFL Swap Counterparty notice of such
occurrence, unless such default shall have been cured.
Section 7.04 Waiver of Events of Default.
The Holders entitled to at least 66-2/3% of the Voting Rights
allocated to each of the Classes of Certificates, or any Companion Loan Holder
(if applicable), affected by any Event of Default hereunder may waive such Event
of Default, except that prior to any waiver of an Event of Default arising from
a failure to make P&I Advances, the Trustee shall be reimbursed all amounts that
it has advanced and for any costs and expenses associated with any related
Servicing Transfer Event. Upon any such waiver of an Event of Default, such
Event of Default shall cease to exist and shall be deemed to have been remedied
for every purpose hereunder. No such waiver shall extend to any subsequent or
other Event of Default or impair any right consequent thereon except to the
extent expressly so waived. Notwithstanding any other provisions of this
Agreement, for purposes of waiving any Event of Default pursuant to this Section
7.04, Certificates registered in the name of the Depositor or any Affiliate of
the Depositor (provided that neither the Depositor nor any Affiliate thereof is
the party in respect of which such Event of Default exists) shall be entitled to
the same Voting Rights with respect to the matters described above as they would
if any other Person held such Certificates.
Section 7.05 Additional Remedies of Trustee Upon Event of
Default.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt 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.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default
hereunder and after the curing or waiver of all such Events of Default and
defaults that may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement; provided that it is
herein acknowledged and agreed that the Trustee is at all times acting in a
fiduciary capacity with respect to the Certificateholders. If an Event of
Default hereunder occurs and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement and applicable law, and use
the same degree of care and skill in their exercise as a prudent man or the
Trustee would exercise or use under the circumstances in the conduct of his or
its own affairs (whichever standard would be higher). Any permissive right of
the Trustee contained in this Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform in form to the requirements of this Agreement. If
any such instrument is found not to so conform to the requirements of this
Agreement in a material manner, the Trustee shall take such action as it deems
appropriate to have the instrument corrected. The Trustee shall not be
responsible for, but may assume and rely upon, the accuracy and content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Depositor, the Master Servicer, the Special Servicer
or the REMIC Administrator and accepted by the Trustee in good faith, pursuant
to this Agreement.
(c) No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct; provided, however:
(i) The duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not
be liable except for the performance of such duties and obligations as
are specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to at
least 25% (or, as to any particular matter, any higher percentage as may
be specifically provided for hereunder) of the Voting Rights relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Agreement.
(d) The Trustee hereby indemnifies and holds the Trust harmless
for all losses, liabilities and damages incurred by the Trust or the
Certificateholders by virtue of the Trustee's negligence or fraud.
Section 8.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(a) The Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) The Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(c) The Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any investigation
of matters arising hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby; provided, further, the Trustee shall be under no obligation
to take any action to enforce the rights of the Class A-2FL Grantor Trust under
the Class A-2FL Swap Contract unless it is assured, in its sole discretion, that
the costs and expenses of such action(s) will be reimbursed by the Holders of
the Class A-2FL Certificates or another party (other than the Trust); provided,
further, the Trustee shall be under no obligation to take any action to enforce
the rights of the Class A-MFL Grantor Trust under the Class A-MFL Swap Contract
unless it is assured, in its sole discretion, that the costs and expenses of
such action(s) will be reimbursed by the Holders of the Class A-MFL
Certificates, or another party (other than the Class A-2FL Grantor Trust, the
Class A-MFL Grantor Trust or the Trust Fund); provided, further, the Trustee
shall not be required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an Event
of Default hereunder that has not been cured, to exercise such of the rights and
powers vested in it by this Agreement and to use the same degree of care and
skill in their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(d) The Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(e) Prior to the occurrence of an Event of Default hereunder, and
after the curing of all such Events of Default that may have occurred, the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing to do so by Holders of Certificates entitled to at
least 25% of the Voting Rights; provided, however, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such action;
(f) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys-in-fact, provided that the use of any such agent or attorney-in-fact
shall not relieve the Trustee from any of its obligations hereunder, and the
Trustee shall remain responsible for all acts and omissions of any such agent or
attorney-in-fact;
(g) For all purposes under this Agreement, the Trustee shall not
be deemed to have notice of any Event of Default hereunder unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written notice of
any event that is in fact such a default is received by the Trustee at the
Corporate Trust Office, and such notice references the Certificates or this
Agreement; and
(h) The Trustee shall not be responsible for any act or omission
of the Master Servicer, the Special Servicer or the REMIC Administrator (unless
the Trustee is acting as Master Servicer, Special Servicer or REMIC
Administrator, as the case may be) or for any act or omission of the Depositor
or the Mortgage Loan Sellers.
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Loans.
The recitals contained herein and in the Certificates (other than
the representations and warranties of, and the other statements attributed to,
the Trustee in Article II and the certificate of authentication executed by the
Trustee as Certificate Registrar set forth on each outstanding Certificate)
shall be taken as the statements of the Depositor, the Master Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement (other than
as specifically set forth in Section 2.07) or of any Certificate (other than as
to the signature of the Trustee set forth thereon) or of any Loan or related
document. The Trustee shall not be accountable for the use or application by the
Depositor of any of the Certificates issued to it or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
in respect of the assignment of the Mortgage Loans to the Trust, or any funds
deposited into or withdrawn from the Certificate Account or any other account by
or on behalf of the Depositor, the Master Servicer, the Special Servicer or the
REMIC Administrator. The Trustee shall not be responsible for the accuracy or
content of any resolution, certificate, statement, opinion, report, document,
order or other instrument furnished by the Depositor, the Master Servicer, the
Special Servicer or the REMIC Administrator and accepted by the Trustee, in good
faith, pursuant to this Agreement.
Section 8.04 Trustee May Own Certificates.
The Trustee, in its individual or any other capacity, and any
agent of the Trustee may become the owner or pledgee of Certificates with,
except as otherwise provided in the definition of Certificateholder, the same
rights it would have if it were not the Trustee or such agent, as the case may
be.
Section 8.05 Fees of Trustee; Indemnification of Trustee.
(a) The Trustee shall pay to itself on each Distribution Date,
pursuant to Section 3.05(b)(ii), from amounts on deposit in the Distribution
Account, an amount equal to the Trustee Fee for such Distribution Date and, to
the extent not previously received, for each prior Distribution Date.
(b) The Trustee and any director, officer, employee or agent of
the Trustee (whether in their Trustee capacity or individually), or Person, if
any, who controls the Trustee within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, shall be entitled to be
indemnified and held harmless by the Trust (to the extent of amounts on deposit
in the Certificate Account and the Distribution Account from time to time)
against any loss, liability or expense (including, without limitation, costs and
expenses of litigation, and of investigation, counsel fees, damages, judgments
and amounts paid in settlement) arising out of, or incurred in connection with,
any legal actions relating to the exercise and performance of any of the powers
and duties of the Trustee hereunder and any other "unanticipated expenses"
(similar to those defined in Treasury Regulations Section 1.860G-1(b)(3)(ii)) of
the Trustee; provided that the Trustee shall not be entitled to indemnification
pursuant to this Section 8.05(b) for (i) allocable overhead, (ii) expenses or
disbursements incurred or made by or on behalf of the Trustee in the normal
course of the Trustee's performing its routine duties in accordance with any of
the provisions hereof, (iii) any expense or liability specifically required to
be borne thereby pursuant to the terms hereof, or (iv) any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of the Trustee's obligations and duties hereunder, or by reason
of negligent disregard of such obligations or duties, or as may arise from a
breach of any representation, warranty or covenant of the Trustee made herein.
The provisions of this Section 8.05(b) shall (i) survive any resignation or
removal of the Trustee and appointment of a successor trustee and (ii) extend to
any other role that the Trustee may assume hereunder, including without
limitation REMIC Administrator, Custodian and/or Certificate Registrar.
Section 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation, a
trust company, a bank or a banking association: (i) organized and doing business
under the laws of the United States of America or any State thereof or the
District of Columbia; (ii) authorized under such laws to exercise trust powers;
(iii) having a combined capital and surplus of at least $50,000,000; (iv)
subject to supervision or examination by federal or state authority; and (v)
whose long-term senior unsecured debt is rated not less than "Aa3" by Xxxxx'x
and "AA-" by S&P (or "A+" by S&P, if the Trustee's unsecured short term debt is
rated at least "A-1" by S&P) and whose short-term unsecured debt obligations are
rated not less than "F-1" by Fitch (or, in the case of each Rating Agency, such
other rating as each such Rating Agency shall permit so long as it is
accompanied by a statement in writing that any of the then-current ratings
assigned by such Rating Agency to the respective Classes of the Certificates or
Companion Loan Securities would not be downgraded, qualified (if applicable) or
withdrawn as a result of such rating). If such corporation, trust company, bank
or banking association publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then, for the purposes of this Section 8.06, the combined capital and
surplus of such corporation, trust company, bank or banking association shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. No Person shall become a successor trustee
hereunder if the succession of such Person would result in a downgrade,
qualification (if applicable) or withdrawal of any of the ratings then assigned
by the Rating Agencies to the Certificates or Companion Loan Securities. In case
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 8.06, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.07. Notwithstanding the
foregoing, if the Trustee meets the requirements of clauses (i) through (iv)
above, but does not meet the requirements of clause (v) above, the Trustee shall
be deemed to meet the requirements of such clause (v) if (a) it appoints a
fiscal agent as a back-up advancer that satisfies the requirements of such
clause (v) and (b) such fiscal agent shall have assumed in writing all
obligations of the Trustee to make Advances under this Agreement as and when
required of the Trustee. The corporation, trust company, bank or banking
association serving as Trustee may have normal banking and trust relationships
with the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and their respective Affiliates.
Section 8.07 Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer, the REMIC Administrator, the Class A-2FL
Swap Counterparty, the Class A-MFL Swap Counterparty and all Certificateholders
and all Companion Loan Holders. In addition if the Trustee resigns or is
discharged, then any fiscal agent appointed by the Trustee shall also be deemed
to have resigned or have been discharged. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee acceptable
to the Master Servicer by written instrument, in duplicate, which instrument
shall be delivered to the resigning Trustee and to the successor trustee. A copy
of such instrument shall be delivered to the Master Servicer, the Special
Servicer, the Class A-2FL Swap Counterparty, the Class A-MFL Swap Counterparty,
the REMIC Administrator and the Certificateholders by the Depositor. If no
successor trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Trustee and appoint a successor
trustee acceptable to the Master Servicer by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer, the Directing Certificateholder, each Companion
Loan Holder, the REMIC Administrator and the Certificateholders by the
Depositor.
(c) The Holders of Certificates entitled to at least 33-1/3% of
the Voting Rights may at any time remove the Trustee and appoint a successor
trustee by written instrument or instruments, in triplicate, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Master Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed; provided
that the Master Servicer, each Companion Loan Holder, the Depositor and the
remaining Certificateholders shall have been notified; and provided further
other Holders of the Certificates entitled to a greater percentage of the Voting
Rights shall not have objected to such removal in writing to the Master Servicer
and the Depositor within 30 days of their receipt of notice thereof. A copy of
such instrument shall be delivered to the Depositor, the Special Servicer, the
REMIC Administrator and the remaining Certificateholders by the Master Servicer.
If the Trustee is removed under this Agreement without cause, all reasonable
costs and expenses incurred by the Trustee (to the extent not duplicative of any
reimbursement provided for under Section 8.08(a)) shall be at the expense of the
party causing such removal.
(d) Any resignation or removal of the Trustee and appointment of
a successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08; and no such resignation or removal of the Trustee
and/or appointment of a successor trustee shall be permitted, unless, as
confirmed in writing by each Rating Agency, such resignation or removal and
appointment would not result in the downgrade, qualification (if applicable) or
withdrawal of the rating assigned by any Rating Agency to any Class of
Certificates or Companion Loan Securities. The Master Servicer shall give notice
to each Companion Loan Holder of any resignation or removal of the Trustee and
appointment of a successor trustee.
Section 8.08 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Master Servicer,
the Special Servicer, the REMIC Administrator and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as trustee herein. The
predecessor trustee shall deliver to the successor trustee all Mortgage Files
and related documents and statements held by it hereunder, and the Depositor,
the Master Servicer, the Special Servicer, the REMIC Administrator and the
predecessor trustee shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and certainly vest and
confirm in the successor trustee all such rights, powers, duties and
obligations, and to enable the successor trustee to perform its obligations
hereunder. If such predecessor trustee was removed as Trustee under this
Agreement without cause, the cost of any such execution, delivery or action
shall be at the expense of the Trust.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, the successor trustee shall mail notice of the
succession of such trustee to the Depositor and the Certificateholders.
(d) The predecessor Trustee and successor Trustee shall notify
the Depositor of any such appointment at least two Business Days prior to the
effective date thereof and shall provide the Depositor with all information
required by the Depositor to comply with its reporting obligation under Item
6.02 of Form 8-K not later than the effective date of such appointment.
Section 8.09 Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or
with which it may be consolidated or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any entity
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee, hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided that the Trustee shall continue
to be eligible under the provisions of Section 8.06 and, as confirmed in writing
by each Rating Agency, such merger, conversion or consolidation would not result
in the downgrade, qualification (if applicable) or withdrawal of the rating
assigned by any Rating Agency to any Class of Certificates. The successor to the
Trustee shall promptly notify in writing each of the other parties hereto, the
Certificateholders and the Rating Agencies of any such merger, conversion,
consolidation or succession to business. The Trustee and such surviving Person
shall notify the Depositor of any such merger, conversion or consolidation at
least two Business Days prior to the effective date thereof and shall provide
the Depositor will all information required by the Depositor to comply with its
reporting obligation under Item 6.02 of Form 8-K not later than the effective
date of such merger, conversion or consolidation.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Master Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in case an Event of Default in
respect of the Master Servicer shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 .
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee, to the extent necessary for such
co-trustee to perform its duties and obligations for which it has been appointed
and specifically including the provisions of Section 8.05(b), shall be conferred
or imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether as
Trustee hereunder or as successor to the Master Servicer, the Special Servicer
or the REMIC Administrator hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the Trustee,
its agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
(e) The appointment of a co-trustee or separate trustee under
this Section 8.10 shall not relieve the Trustee of its duties, responsibilities
or liabilities hereunder; provided that the Trustee shall have no liability for
the actions or inaction of a separate trustee or co-trustee that do not comply
with the provisions of Section 8.10(b).
Section 8.11 Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer, appoint
one or more Custodians to hold all or a portion of the Mortgage Files as agent
for the Trustee; provided that if the Custodian is an Affiliate of the Trustee
such consent of the Master Servicer need not be obtained and the Trustee shall
instead notify the Master Servicer of such appointment. Each Custodian shall be
a depository institution subject to supervision by federal or state authority,
shall have combined capital and surplus (or shall have its performance
guaranteed by an Affiliate with a combined capital and surplus) of at least
$10,000,000, shall be qualified to do business in the jurisdiction in which it
holds any Mortgage File and shall not be the Depositor, any Mortgage Loan Seller
or any Affiliate of any of them. Each Custodian shall be subject to the same
obligations and standard of care as would be imposed on the Trustee hereunder in
connection with the retention of Mortgage Files directly by the Trustee. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its duties, liabilities or obligations hereunder, and the Trustee shall remain
responsible for all acts and omissions of any Custodian. Any such Custodian
(other than the Trustee or an Affiliate of the Trustee) shall maintain the same
errors and omissions insurance as required of the Master Servicer pursuant to
Section 3.07(c).
Section 8.12 Access to Certain Information.
(a) The Trustee shall provide or cause to be provided to the
Depositor, the Master Servicer, the Special Servicer and the Rating Agencies,
and to the OTS, the FDIC, and any other federal or state banking or insurance
regulatory authority that may exercise authority over any Certificateholder,
access to the Mortgage Files and any other documentation regarding the Loans and
the Trust Fund, that is within its control that may be required by this
Agreement or by applicable law. Such access shall be afforded without charge but
only upon reasonable prior written request and during normal business hours at
the offices of the Trustee designated by it.
(b) Promptly following the first sale of any Non-Registered
Certificate to an Independent third party, the Depositor shall provide to the
Trustee ten copies of any private placement memorandum or other disclosure
document used by the Depositor or its Affiliate in connection with the offer and
sale of the Class of Certificates to which such Non-Registered Certificate
belongs. In addition, if any such private placement memorandum or disclosure
document is revised, amended or supplemented at any time following the delivery
thereof to the Trustee, the Depositor promptly shall inform the Trustee of such
event and shall deliver to the Trustee ten copies of the private placement
memorandum or disclosure document, as revised, amended or supplemented. The
Trustee shall maintain at its Corporate Trust Office and shall on behalf of the
Depositor, upon reasonable advance written notice, make available during normal
business hours for review by each Rating Agency and by any Certificateholder or
any Certificate Owner or any Person identified to the Trustee by a
Certificateholder or a Certificate Owner as a prospective transferee of a
Certificate or interest therein, originals or copies of the following items: (i)
in the case of a Holder or prospective transferee of a Non-Registered
Certificate, any private placement memorandum or other disclosure document
relating to the Class of Certificates to which such Non-Registered Certificate
belongs, in the form most recently provided to the Trustee; and (ii) in all
cases, (A) all Officer's Certificates delivered to the Trustee since the Closing
Date pursuant to Section 11.09, (B) all accountants' reports delivered to the
Trustee since the Closing Date pursuant to Section 11.11, (C) the most recent
inspection report, together with any related additional written or electronic
information, prepared or obtained by, or on behalf of, the Master Servicer or
Special Servicer, as the case may be, and delivered to the Trustee in respect of
each Mortgaged Property pursuant to Section 3.12(a), (D) all Mortgagor financial
statements and Mortgaged Property operating statements and rent rolls, together
with any related additional written or electronic information, delivered to the
Trustee by the Master Servicer or the Special Servicer pursuant to Section
3.12(b), (E) any and all notices and reports delivered to the Trustee with
respect to any Mortgaged Property securing a Defaulted Serviced Loan as to which
the environmental testing contemplated by Section 3.09(c) revealed that either
of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof was not satisfied or that any remedial, corrective or other further
action contemplated in such clauses is required (but only for so long as such
Mortgaged Property or the related Mortgage Loan is part of the Trust Fund), (F)
all documents constituting the Mortgage Files, including, without limitation,
any and all modifications, waivers and amendments of the terms of a Loan entered
into by the Master Servicer or the Special Servicer and delivered to the Trustee
pursuant to Section 3.20 (but, in each case, only for so long as the related
Mortgage Loan is part of the Trust Fund) and, (G) any Asset Status Report.
Copies of any and all of the foregoing items are to be available from the
Trustee upon request; however, the Trustee shall be permitted to require payment
of a sum sufficient to cover the reasonable costs and expenses of providing such
service.
In connection with providing access to or copies of the items
described in the immediately preceding paragraph of this Section 8.12(b), the
Trustee may require, unless the Depositor directs otherwise, (i) in the case of
Certificate Owners, a written confirmation executed by the requesting Person, in
form reasonably satisfactory to the Trustee, generally to the effect that such
Person is a beneficial holder of Certificates and will keep such information
confidential and (ii) in the case of any prospective purchaser of a Certificate
or, in the case of a Book-Entry Certificate, of a beneficial ownership interest
therein, a written confirmation executed by the requesting Person, in form
reasonably satisfactory to the Trustee, generally to the effect that such Person
is a prospective purchaser of a Certificate or a beneficial ownership interest
therein, is requesting the information for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. All Certificateholders, by acceptance of their Certificates, shall
be deemed to have agreed to keep such information confidential, except to the
extent that the Depositor grants written permission to the contrary.
Notwithstanding the preceding sentences of this paragraph, the Trustee shall
have no responsibility for the accuracy, completeness or sufficiency of any
information so made available or furnished by it in the manner described in the
immediately preceding paragraph.
Section 8.13 Maintenance of Mortgage File.
Except for the release of items in the Mortgage File contemplated
by this Agreement, including, without limitation, as necessary for the
enforcement of the holder's rights and remedies under the related Mortgage Loan,
the Trustee covenants and agrees that it shall maintain each Mortgage File in
the State of Minnesota, and that it shall not move any Mortgage File outside the
State of Minnesota, other than as specifically provided for in this Agreement,
unless it shall first obtain and provide, at the expense of the Trustee, an
Opinion of Counsel addressed to the Depositor and the Rating Agencies to the
effect that the Trustee's first priority interest in the Mortgage Notes has been
duly and fully perfected under the applicable laws and regulations of such other
jurisdiction.
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust and the respective obligations
and responsibilities under this Agreement of the Depositor, the Master Servicer,
the Special Servicer, the Trustee and the REMIC Administrator (other than the
obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth and the obligations of the REMIC
Administrator to file the final Tax Returns for each of REMIC I and REMIC II and
to maintain the books and records thereof for a commercially reasonable period)
shall terminate upon payment (or provision for payment) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required hereunder to be so paid, any unpaid Class A-2FL Net Swap Payment owed
to the Class A-2FL Swap Counterparty and any unpaid Class A-MFL Net Swap Payment
owed to the Class A-MFL Swap Counterparty (which shall be payable outside the
Trust REMICs to the respective Swap Trust) on the Distribution Date following
the earlier to occur of (i) the purchase by the Majority Certificateholder of
the Controlling Class (other than the Depositor or any Mortgage Loan Seller) the
Master Servicer, or the Special Servicer (in that order of priority) of all
Mortgage Loans and each REO Property remaining in REMIC I at a price (to be
calculated by the Master Servicer and the Trustee as of the close of business on
the third Business Day preceding the date upon which notice of any such purchase
is furnished to Certificateholders pursuant to the third paragraph of this
Section 9.01 and as if the purchase was to occur on such Business Day) equal to
(A) the aggregate Purchase Price of all the Mortgage Loans included in REMIC I,
plus (B) the appraised value of each REO Property, if any, included in REMIC I
(such appraisal to be conducted by a Qualified Appraiser selected by the Master
Servicer or the Special Servicer and approved by the Trustee), minus (C) if such
purchase is being made by the Master Servicer or the Special Servicer, the
aggregate amount of unreimbursed Advances made by the related person, together
with any Advance Interest payable to the related person in respect of such
Advances and any unpaid servicing compensation remaining outstanding (which
items shall be deemed to have been paid or reimbursed to the related person in
connection with such purchase), and (ii) the final payment or other liquidation
(or any Advance with respect thereto) of the last Mortgage Loan or REO Property
remaining in REMIC I; provided, however, in no event shall the trust created
hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof.
The Majority Certificateholder of the Controlling Class (other
than the Depositor or any Mortgage Loan Seller) has the right, and if the
Majority Certificateholder of the Controlling Class fails to exercise such
right, the Master Servicer and the Special Servicer, in that order of priority,
has the right to purchase all of the Mortgage Loans and each REO Property
remaining in REMIC I as contemplated by clause (i) of the preceding paragraph by
giving written notice to the other parties hereto no later than 60 days prior to
the anticipated date of purchase; provided, however, the Master Servicer, the
Special Servicer and any Majority Certificateholder of the Controlling Class
(other than the Depositor or any Mortgage Loan Seller) each may so elect to
purchase all of the Mortgage Loans and each REO Property remaining in REMIC I
only if the aggregate Stated Principal Balance of the Mortgage Pool at the time
of such election is less than 1.0% of the aggregate Cut-off Date Balance of all
the Mortgage Loans included in the Trust Fund as of the Closing Date. In the
event that the Master Servicer, the Special Servicer or any Majority
Certificateholder of the Controlling Class (other than the Depositor or any
Mortgage Loan Seller) elects to purchase all of the Mortgage Loans and each REO
Property remaining in REMIC I in accordance with the preceding sentence, the
Master Servicer, the Special Servicer or such Majority Certificateholder, as
applicable, shall deposit into the Distribution Account not later than the
Master Servicer Remittance Date relating to the Distribution Date on which the
final distribution on the Certificates is to occur, an amount in immediately
available funds equal to the above-described purchase price (exclusive of any
portion thereof payable to any Person other than the Certificateholders pursuant
to Section 3.05(a), which portion shall be deposited into the Certificate
Account) or, if a Serviced Whole Loan is involved, in the related Serviced Whole
Loan Custodial Account. In addition, the Master Servicer shall transfer all
amounts required to be transferred to the Distribution Account on such Master
Servicer Remittance Date from the Certificate Account or, if a Serviced Whole
Loan is involved, the related Serviced Whole Loan Custodial Account pursuant to
the first paragraph of Section 3.04(e). Upon confirmation that such final
deposits have been made, the Trustee shall release or cause to be released to
the purchaser or its designee, the Mortgage Files for the remaining Mortgage
Loans and shall execute all assignments, endorsements and other instruments
furnished to it by the purchaser, as shall be necessary to effectuate transfer
of the Mortgage Loans and REO Properties remaining in REMIC I.
Following the date on which the Class Principal Balances of the
Investment Grade Sequential Pay Certificates and the Class A-2FL and Class A-MFL
Certificates are reduced to zero, the Sole Pooled Certificateholder shall have
the right to exchange all of such Certificates for all of the Mortgage Loans and
each REO Property remaining in the Trust Fund by giving written notice to all
the parties hereto and, Companion Loan Holders and each Controlling Holder no
later than 60 days prior to the anticipated date of exchange. In the event that
the Holders voluntarily participate in the exchange described above, such
exchange shall occur by means of an arms length transaction for which such
Holder shall have received, immediately upon the consummation of the exchange
described in the next sentence, consideration (which consideration may include
(among other things): cash (or its equivalent), a beneficial ownership interest
in the related Mortgage Loan in the form of a participation or any combination
thereof) for its beneficial ownership interest in the Trust Fund and its related
interest in any REMIC created hereunder equal to the value of the Certificates
held by such Holder. Further, in the event that the Sole Pooled
Certificateholder elects to exchange all of its Certificates for all of the
Mortgage Loans and each REO Property (or the pro rata portion thereof allocable
to such Holders) remaining in the Trust in accordance with the second preceding
sentence, the Sole Pooled Certificateholder, not later than the Distribution
Date on which the final distribution on the Certificates is to occur, shall
deposit in the Certificate Account an amount in immediately available funds
equal to all amounts due and owing to the Depositor, the Master Servicer, the
Special Servicer and the Trustee hereunder through the date of the liquidation
of the Trust Fund that may be withdrawn from the Certificate Account, or an
escrow account acceptable to the respective parties hereto, pursuant to Section
3.05(a) or that may be withdrawn from the Distribution Account pursuant to
Section 3.05(b), but only to the extent that such amounts are not already on
deposit in the Certificate Account. In addition, the Master Servicer shall
transfer all amounts required to be transferred to the REMIC I Distribution
Account on such Distribution Date from the Certificate Account pursuant to
Section 3.04(c)(i). Upon confirmation that such final deposits have been made
and following the surrender of all the Certificates beneficially owned by the
Sole Pooled Certificateholder, the Trustee shall, upon receipt of a Request for
Release from the Master Servicer, release or cause to be released to the Sole
Pooled Certificateholder or any designee thereof, the Mortgage Files for the
remaining Mortgage Loans and shall execute all assignments, endorsements and
other instruments furnished to it by the Sole Pooled Certificateholder as shall
be necessary to effectuate transfer of the Mortgage Loans and REO Properties
remaining in the Trust Fund, and the Trust Fund shall be liquidated in
accordance with Section 9.02. The remaining Mortgage Loans and REO Properties
shall thereupon be deemed distributed to the Sole Pooled Certificateholder in
liquidation of the Trust Fund pursuant to Section 9.02. Solely for federal
income tax purposes, the Sole Pooled Certificateholder shall be deemed to have
purchased the assets of REMIC I for an amount equal to the remaining Class
Principal Balance of their respective Certificates, plus accrued, unpaid
interest with respect thereto, and the Trustee shall credit such amounts against
amounts distributable in respect of such Certificates and the Corresponding
REMIC I Regular Interests.
Notice of any termination shall be given promptly by the Trustee
by letter to the Class A-2FL Swap Counterparty, the Class A-MFL Swap
Counterparty and the Certificateholders and, if not previously notified pursuant
to the preceding paragraph, to the other parties hereto mailed (a) in the event
such notice is given in connection with a purchase by the Master Servicer or any
Majority Certificateholder of the Controlling Class (other than the Depositor or
any Mortgage Loan Seller) of all of the Mortgage Loans and each REO Property
remaining in REMIC I, not earlier than the fifteenth day and not later than the
twenty-fifth day of the month next preceding the month of the final distribution
on the Certificates or (b) otherwise during the month of such final distribution
on or before the fifth day of such month, in each case specifying (i) the
Distribution Date upon which the Trust will terminate and final payment on the
Certificates will be made, (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the offices of the Certificate Registrar or such other location
therein designated.
Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the Available
Distribution Amount and Prepayment Premiums for such date that is allocable to
payments on the relevant Class in accordance with Section 4.01(b) and Section
4.01(c)(i). Final distributions on the REMIC I Regular Interests shall be deemed
to be made on such date as provided in Section 4.01(a)(i), Section 4.01(a)(ii),
Section 4.01(b) and Section 4.01(c)(iv).
Any funds not distributed to any Holder or Holders of
Certificates of any Class on the Final Distribution Date because of the failure
of such Holder or Holders to tender their Certificates shall, on such date, be
set aside and held uninvested in trust and credited to the account or accounts
of the appropriate non-tendering Holder or Holders. If any Certificates as to
which notice has been given pursuant to this Section 9.01 shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice all such Certificates shall not have been surrendered for cancellation,
the Trustee, directly or through an agent, shall take such reasonable steps to
contact the remaining non-tendering Certificateholders concerning the surrender
of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the non-tendering
Certificateholders shall be paid out of such funds. No interest shall accrue or
be payable to any former Holder on any amount held in trust hereunder. If by the
second anniversary of the delivery of such second notice, all of the
Certificates shall not have been surrendered for cancellation, the Class R-II
Certificateholders shall be entitled to all unclaimed funds and other assets
that remain subject thereto.
Section 9.02 Additional Termination Requirements.
In the event the Master Servicer, the Special Servicer or a
Majority Certificateholder of the Controlling Class (other than the Depositor or
any Mortgage Loan Seller) purchases all of the Mortgage Loans and each REO
Property remaining in REMIC I as provided in Section 9.01, the Trust (and,
accordingly, REMIC I and REMIC II) shall be terminated in accordance with the
following additional requirements, unless the Master Servicer or such Majority
Certificateholder, as applicable, obtains at its own expense and delivers to the
Trustee and the REMIC Administrator an Opinion of Counsel, addressed to the
Trustee and the REMIC Administrator, to the effect that the failure of the Trust
to comply with the requirements of this Section 9.02 will not result in the
imposition of taxes on "prohibited transactions" of REMIC I or REMIC II as
defined in Section 860F of the Code or cause REMIC I or REMIC II to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) the REMIC Administrator shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax Return
for each of REMIC I and REMIC II pursuant to Treasury Regulations Section
1.860F-1;
(ii) during such 90-day liquidation period and at or prior to the
time of making of the final payment on the Certificates, the Trustee
shall sell all of the assets of REMIC I to the Master Servicer or the
Majority Certificateholder of the Controlling Class, as applicable, for
cash; and
(iii) prior to the end of such 90-day period and at the time of
the making of the final payment on the Certificates, the Trustee shall
distribute or credit, or cause to be distributed or credited, to the
Holders of the Class R-I Certificates (in the case of REMIC I) and the
Class R-II Certificates (in the case of REMIC II) all cash on hand (other
than cash retained to meet claims), and each of REMIC I and REMIC II
shall terminate at that time.
In the event the Class A-2FL Grantor Trust is to be terminated
while the Class A-2FL Swap Contract is still in effect, the Swap Trustee shall
promptly notify the Class A-2FL Swap Counterparty in writing of the date on
which the Class A-2FL Grantor Trust is to be terminated and the notional amount
of the Class A-2FL Swap Contract will be reduced to zero on such date. Based on
the date of termination, the Swap Trustee shall calculate the Class A-2FL Net
Swap Payment, if any, as specified in Section 3.31, and prior to any final
distribution to the Holders of the Class A-2FL Certificates pursuant to Section
9.01, shall pay such Class A-2FL Net Swap Payment if any, to the Class A-2FL
Swap Counterparty. In the event that any fees (including termination fees) will
be payable to the Class A-2FL Swap Counterparty in connection with such
termination, such fees will be payable to the Class A-2FL Swap Counterparty
solely from amounts remaining in the applicable Class A-2FL Floating Rate
Account after all distributions, to the Class A-2FL Certificates are made
pursuant to Section 9.01.
Similarly, in the event the Class A-MFL Grantor Trust is to be
terminated while the Class A-MFL Swap Contract is still in effect, the Swap
Trustee shall promptly notify the Class A-MFL Swap Counterparty in writing of
the date on which the Class A-MFL Grantor Trust is to be terminated and the
notional amount of the Class A-MFL Swap Contract will be reduced to zero on such
date. Based on the date of termination, the Swap Trustee shall calculate the
Class A-MFL Net Swap Payment, if any, as specified in Section 3.32, and prior to
any final distribution to the Holders of the Class A-MFL Certificates pursuant
to Section 9.01, shall pay such Class A-MFL Net Swap Payment if any, to the
Class A-MFL Swap Counterparty. In the event that any fees (including termination
fees) will be payable to the Class A-MFL Swap Counterparty in connection with
such termination, such fees will be payable to the Class A-MFL Swap Counterparty
solely from amounts remaining in the applicable Class A-MFL Floating Rate
Account after all distributions, to the Class A-MFL Certificates are made
pursuant to Section 9.01.
ARTICLE X
ADDITIONAL REMIC AND GRANTOR TRUST PROVISIONS
Section 10.01 REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC I
and REMIC II as a REMIC under the Code and, if necessary, under Applicable State
Law. Each such election will be made on Form 1066 or other appropriate federal
or state Tax Returns for the taxable year ending on the last day of the calendar
year in which the Certificates are issued.
(b) The REMIC I Regular Interests are hereby designated as
"regular interests" (within the meaning of Section 860G(a)(1) of the Code), and
the residual interest in REMIC I, represented by the Class R-I Certificates, is
hereby designated as the sole Class of "residual interests" (within the meaning
of Section 860G(a)(2) of the Code), in REMIC I. The Class A-1 Certificate, Class
A-2 Certificate, Class A-2FL Regular Interest, Class A-3 Certificate, Class A-AB
Certificate, Class A-4 Certificate, Class A-5 Certificate, Class A-1A
Certificate, Class XW Certificate, Class A-M Certificate, Class A-MF
Certificate, Class A-MFL Regular Interest, Class A-J Certificate, Class B
Certificate, Class C Certificate, Class D Certificate, Class E Certificate,
Class F Certificate, Class G Certificate, Class H Certificate, Class J
Certificate, Class K Certificate, Class L Certificate, Class M Certificate,
Class N Certificate, Class O Certificate, Class P Certificate, Class Q
Certificate, and Class S Certificates are hereby designated as the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the Class
R-II Certificates are hereby designated as the sole Class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code), in REMIC II.
For the avoidance of doubt, the Class XW Certificates represent "specified
portions," within the meaning of Treasury Regulations Section 1.860G-1(a)(2), of
the interest payments on the REMIC I Regular Interests corresponding to their
respective Corresponding Components. None of the REMIC Administrator, the Master
Servicer, the Special Servicer or the Trustee shall, to the extent it is within
the control of such Person, create or permit the creation of any other
"interests" in REMIC I or REMIC II.
(c) The Closing Date is hereby designated as the "startup day" of
each of REMIC I and REMIC II within the meaning of Section 860G(a)(9) of the
Code. The "latest possible maturity date", within the meaning of Treasury
Regulations Section 1.860G-1(a)(4)(iii) of the REMIC I Regular Interests, the
REMIC II Regular Certificates and the Class A-2FL Regular Interest and Class
A-MFL Regular Interest is the Rated Final Distribution Date.
(d) The REMIC Administrator is hereby designated as agent for the
Tax Matters Person of each of REMIC I and REMIC II and shall: act on behalf of
the Trust in relation to any tax matter or controversy, represent the Trust in
any administrative or judicial proceeding relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of REMIC I or REMIC II, enter into settlement agreements with
any governmental taxing agency, extend any statute of limitations relating to
any tax item of REMIC I or REMIC II, and otherwise act on behalf of each of
REMIC I and REMIC II in relation to any tax matter or controversy involving such
REMIC. By their acceptance thereof, the Holders of the REMIC Residual
Certificates hereby agree to irrevocably appoint the REMIC Administrator as
their agent to perform all of the duties of the Tax Matters Person for REMIC I
and REMIC II. Subject to Section 10.01(g), the legal expenses and costs of any
action described in this subsection (d) and any liability resulting therefrom
shall be expenses, costs and liabilities of the Trust, and the REMIC
Administrator shall be entitled to be reimbursed therefor out of any amounts on
deposit in the Distribution Account as provided by Section 3.05(b).
(e) The REMIC Administrator shall prepare and file or cause to be
prepared and filed, and the Trustee shall sign, all of the Tax Returns in
respect of each of REMIC I and REMIC II. The expenses of preparing and filing
such returns shall be borne by the REMIC Administrator without any right of
reimbursement therefor.
(f) The REMIC Administrator shall perform or cause to be
performed on behalf of each of REMIC I and REMIC II all reporting and other tax
compliance duties that are the responsibility of each such REMIC under the Code,
the REMIC Provisions or other compliance guidance issued by the IRS or any other
taxing authority under Applicable State Law. Included among such duties, the
REMIC Administrator shall provide, or cause to be provided: (i) to any
Transferor of a REMIC Residual Certificate and the IRS, such information as is
necessary for the application of any tax relating to the transfer of a REMIC
Residual Certificate to any Person who is a Disqualified Organization; (ii) to
the Certificateholders, such information or reports as are required by the Code
or the REMIC Provisions, including, without limitation, reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption as required); and (iii) with respect to REMIC II, Form
8811, or other applicable form, to the IRS, and the name, title, address and
telephone number of the Person who will serve as the representative of REMIC II.
(g) The REMIC Administrator shall perform its duties more
specifically set forth hereunder in a manner consistent with maintaining the
status of each of REMIC I and REMIC II as a REMIC under the REMIC Provisions
(and each of the other parties hereto shall assist it, to the extent reasonably
requested by it). The REMIC Administrator shall not knowingly take (or cause
either REMIC I or REMIC II to take) any action or fail to take (or fail to cause
to be taken) any action within the scope of its duties more specifically set
forth hereunder that, under the REMIC Provisions, if taken or not taken, as the
case may be, could result in an Adverse REMIC Event with respect to REMIC I or
REMIC II, unless the REMIC Administrator has received an Opinion of Counsel to
the effect that the contemplated action will not result in an Adverse REMIC
Event. None of the other parties hereto shall take any action (whether or not
authorized hereunder) as to which the REMIC Administrator has advised it in
writing that it has received an Opinion of Counsel to the effect that an Adverse
REMIC Event could occur with respect to such action. In addition, prior to
taking any action with respect to REMIC I or REMIC II, or causing REMIC I or
REMIC II to take any action, that is not expressly permitted under the terms of
this Agreement, each of the other parties hereto will consult with the REMIC
Administrator, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur. None of the parties hereto shall take any such
action or cause REMIC I or REMIC II to take any such action as to which the
REMIC Administrator has advised it in writing that an Adverse REMIC Event could
occur. The REMIC Administrator may consult with counsel to make such written
advice, and the cost of same shall be borne: (i) if such action that is not
expressly permitted by this Agreement would be of a material benefit to or
otherwise in the best interests of the Certificateholders as a whole, by the
Trust and shall be paid by the Trustee at the direction of the REMIC
Administrator out of amounts on deposit in the Distribution Account; and (ii)
otherwise by the party seeking to take the action not permitted by this
Agreement.
In the event that any tax is imposed on REMIC I or REMIC II,
including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any taxes on contributions to REMIC I or REMIC
II after the Startup Day pursuant to Section 860G(d) of the Code, and any other
tax imposed by the Code or any applicable provisions of state or local tax laws
(other than any tax permitted to be incurred by the Special Servicer pursuant to
Section 3.17(a)), such tax, together with all incidental costs and expenses
(including, without limitation, penalties and reasonable attorneys' fees), shall
be charged to and paid by: (i) the REMIC Administrator, if such tax arises out
of or results from a breach by the REMIC Administrator of any of its obligations
under this Article X; (ii) the Trustee, if such tax arises out of or results
from a breach by the Trustee of any of its obligations under this Article X;
(iii) the Master Servicer, if such tax arises out of or results from a breach by
the Master Servicer of any of its obligations under Article III or this Article
X; (iv) the Special Servicer, if such tax arises out of or results from a breach
by the Special Servicer of any of its obligations under Article III or this
Article X; or (v) the Trust in all other instances. Any tax permitted to be
incurred by the Special Servicer pursuant to Section 3.17(a) shall be charged to
and paid by the Trust. Any such amounts payable by the Trust in respect of taxes
shall be paid by the Trustee at the direction of the REMIC Administrator out of
amounts on deposit in the REMIC I Distribution Account.
(h) The REMIC Administrator and, to the extent that records are
maintained thereby in the normal course of its business, each of the other
parties hereto shall, for federal income tax purposes, maintain books and
records with respect to each of REMIC I and REMIC II on a calendar year and on
an accrual basis. Such records with respect to REMIC I shall include, for each
Distribution Date, the applicable REMIC I Principal Balance, REMIC I Remittance
Rate, and each category of distribution on or with respect to the REMIC I
Regular Interests and the REMIC I Residual Interest.
(i) Following the Startup Day therefor, the Trustee shall not
accept any contributions of assets to REMIC I or REMIC II unless it shall have
received an Opinion of Counsel (at the expense of the party seeking to cause
such contribution) to the effect that the inclusion of such assets in such REMIC
will not cause: (i) such REMIC to fail to qualify as a REMIC at any time that
any Certificates are outstanding; or (ii) the imposition of any tax on such
REMIC under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(j) None of the REMIC Administrator, the Master Servicer, the
Special Servicer or the Trustee shall consent to or, to the extent it is within
the control of such Person, permit: (i) the sale or disposition of any of the
Mortgage Loans (except in connection with (A) a breach of any representation or
warranty of a Mortgage Loan Seller regarding the related Mortgage Loans or as
otherwise provided for in Section 2.03, (B) the foreclosure, default or imminent
default of a Mortgage Loan, including but not limited to, the sale or other
disposition of a Mortgaged Property acquired by deed-in-lieu of foreclosure, (C)
the bankruptcy of REMIC I or REMIC II, or (D) the termination of the Trust
pursuant to Article IX); (ii) the sale or disposition of any investments in the
Certificate Account or the REO Account for gain; or (iii) the acquisition of any
assets for the Trust Fund (other than a Mortgaged Property acquired through
foreclosure, deed-in-lieu of foreclosure or otherwise in respect of a Defaulted
Serviced Loan and other than Permitted Investments acquired in connection with
the investment of funds in the Certificate Account or the REO Account); in any
event unless it has received an Opinion of Counsel (from and at the expense of
the party seeking to cause such sale, disposition, or acquisition) to the effect
that such sale, disposition, or acquisition will not cause: (x) REMIC I or REMIC
II to fail to qualify as a REMIC at any time that any Certificates are
outstanding; or (y) the imposition of any tax on REMIC I or REMIC II under the
REMIC Provisions or other applicable provisions of federal, state and local law
or ordinances.
(k) Except as otherwise permitted by Section 3.17(a), none of the
REMIC Administrator, the Master Servicer, the Special Servicer or the Trustee
shall enter into any arrangement by which REMIC I or REMIC II will receive a fee
or other compensation for services or, to the extent it is within the control of
such Person, permit REMIC I or REMIC II to receive any income from assets other
than "qualified mortgages" as defined in Section 860G(a)(3) of the Code or
"permitted investments" as defined in Section 860G(a)(5) of the Code. At all
times as may be required by the Code, the REMIC Administrator shall make
reasonable efforts to ensure that substantially all of the assets of REMIC I and
REMIC II will consist of "qualified mortgages" as defined in Section 860G(a)(3)
of the Code and "permitted investments" as defined in Section 860G(a)(5) of the
Code.
Section 10.02 Depositor, Master Servicer, Special Servicer and
Trustee to Cooperate with REMIC Administrator.
(a) The Depositor shall provide or cause to be provided to the
REMIC Administrator, within ten days after the Closing Date, all information or
data that the REMIC Administrator reasonably determines to be relevant for tax
purposes as to the valuations and issue prices of the Certificates, including,
without limitation, the price, yield, prepayment assumption and projected cash
flow of the Certificates.
(b) The Master Servicer, the Special Servicer and the Trustee
shall each furnish such reports, certifications and information, and access to
such books and records maintained thereby, as may relate to the Certificates or
the Trust Fund and as shall be reasonably requested by the REMIC Administrator
to enable it to perform its duties hereunder.
Section 10.03 Fees of the REMIC Administrator.
In the event the Trustee and the REMIC Administrator are not the
same Person, the Trustee covenants and agrees to pay to the REMIC Administrator
from time to time, and the REMIC Administrator shall be entitled to, reasonable
compensation (as set forth in a written agreement between the Trustee and the
REMIC Administrator) for all services rendered by it in the exercise and
performance of any of the obligations and duties of the REMIC Administrator
hereunder.
Section 10.04 Use of Agents.
The REMIC Administrator may execute any of its obligations and
duties hereunder either directly or by or through agents or attorneys-in-fact
consented to by the Trustee, which consent shall not be unreasonably withheld;
provided that the REMIC Administrator shall not be relieved of its liabilities,
duties and obligations hereunder by reason of the use of any such agent or
attorney-in-fact.
Section 10.05 Grantor Trust Administration.
(a) The parties intend that the segregated pool of assets
consisting of: (i) the Class A-2FL Regular Interest, the Class A-2FL Swap
Contract, the Class A-2FL Floating Rate Account and proceeds thereof and (ii)
the Class A-MFL Regular Interest, the Class A-MFL Swap Contract, the Class A-MFL
Floating Rate Account and proceeds thereof shall be treated as a "grantor trust"
under the Code, and the provisions thereof shall be interpreted consistently
with this intention. In furtherance of such intention with respect to the
Grantor Trusts, the Trustee shall file or cause to be filed annually with the
IRS together with IRS Form 1041 or such other form as may be applicable and
shall furnish or cause to be furnished annually: (i) with respect to the Class
A-2FL Grantor Trust, to the Holders of the Class A-2FL Certificates, their
allocable shares of income and expense with respect to the Class A-2FL Regular
Interest and the Class A-2FL Swap Contract; and (ii) with respect to the Class
A-MFL Grantor Trust, to the Holders of the Class A-MFL Certificates, their
allocable shares of income and expense with respect to the Class A-MFL Regular
Interest and the Class A-2FL Swap Contract, each at the time or times and in the
manner required by the Code. In addition, the Trustee shall use its best efforts
to obtain a taxpayer identification number as soon as possible after the Closing
Date (but no later than the first payment date under the Class A-2FL Swap
Contract and the Class A-MFL Swap Contract) for the Class A-2FL Grantor Trust
and the Class A-MFL Grantor Trust and shall deliver or cause to be delivered the
federal taxpayer identification number of each of the Class A-2FL Grantor Trust
and the Class A-MFL Grantor Trust on an IRS Form W-9 to the Class A-2FL Swap
Counterparty or the Class A-2FL Swap Counterparty (as applicable) and, if
requested by the Class A-2FL Swap Counterparty or the Class A-2FL Swap
Counterparty (as applicable) (unless not permitted under federal income tax
law), an applicable IRS Form W-8IMY. Under no circumstances shall the Trustee,
the Master Servicer or the Special Servicer have the power to vary the
investment of the Holders of the Class A-2FL or Class A-MFL Certificates in the
related Grantor Trust to take advantage of variations in the market rate of
interest to improve their rate of return.
(b) Each Grantor Trust shall be treated as a WHFIT that is a
NMWHFIT. The REMIC Administrator shall report as required under the WHFIT
Regulations, provided that the REMIC Administrator receives on a timely basis
any and all information reasonably necessary for it to do so. The REMIC
Administrator is hereby directed to assume that DTC is the only "middleman" (as
such term is defined in the WHFIT Regulations) unless the Depositor provides the
REMIC Administrator with the identities of other "middlemen" that are
Certificateholders. The REMIC Administrator shall be entitled to rely on the
first sentence of this Section 10.05(b) and shall be entitled to indemnification
in accordance with the terms of this Agreement in the event that the Internal
Revenue Service makes a determination that the first sentence of this Section
10.05(b) is incorrect.
(c) The REMIC Administrator, in its discretion, shall report
required WHFIT information using either the cash or accrual method, except to
the extent the WHFIT Regulations specifically require a different method. The
REMIC Administrator is under no obligation to determine whether any
Certificateholder or other beneficial owner of a Certificate, to the extent the
REMIC Administrator knows of any other beneficial owner of a Certificate, uses
the cash or accrual method. The REMIC Administrator shall make available
information as required by the WHFIT Regulations to Certificateholders annually.
In addition, the REMIC Administrator is not responsible or liable for providing
subsequently amended, revised or updated information to any Certificateholder,
unless requested by the Certificateholder.
(d) The REMIC Administrator shall not be liable for failure to
meet the reporting requirements of the WHFIT Regulations nor for any penalties
thereunder if such failure is due to: (i) the lack of reasonably necessary
information being provided to the REMIC Administrator, (ii) incomplete,
inaccurate or untimely information being provided to the REMIC Administrator or
(iii) the inability of the REMIC Administrator, after good faith efforts, to
alter its existing information reporting systems to capture information
necessary to fully comply with the WHFIT Regulations for the 2007 calendar year.
Absent receipt of information regarding any sale of securities, including the
price, amount of proceeds and date of sale from the beneficial owner thereof or
the Depositor, the REMIC Administrator will assume there is no secondary market
trading of WHFIT interests.
(e) To the extent required by the WHFIT Regulations, the REMIC
Administrator shall use reasonable efforts to publish on an appropriate website
the CUSIP Numbers for the Certificates that represent ownership of a WHFIT. The
CUSIP Numbers so published shall represent the Rule 144A CUSIP Numbers. The
REMIC Administrator shall make reasonable good faith efforts to keep the website
accurate and updated to the extent CUSIP Numbers have been received. The REMIC
Administrator is not liable for investor reporting delays that result from the
receipt of inaccurate or untimely CUSIP Number information.
(f) The REMIC Administrator shall be entitled to additional
reasonable compensation for changes in reporting required in respect of the
WHFIT Regulations that arise as a result of a change in the WHFIT Regulations or
a change in interpretation of the WHFIT Regulations by the Internal Revenue
Service, if such change requires, in the REMIC Administrator's sole discretion,
a material increase in the REMIC Administrator's reporting obligations in
respect of the related Grantor Trust.
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness. The parties
hereto acknowledge and agree that the purpose of Article XI of this Agreement is
to facilitate compliance by the Depositor with the provisions of Regulation AB
and the related rules and regulations of the Commission. Except with respect to
Section 11.09 and Section 11.11, the Depositor or the Master Servicer shall not
exercise their right to request delivery of information or other performance
under these provisions other than in good faith, or for purposes other than
compliance with the Securities Act, the Exchange Act, the Xxxxxxxx-Xxxxx Act
and, in each case, the rules and regulations of the Commission thereunder. The
parties hereto acknowledge that interpretations of the requirements of
Regulation AB may change over time due to interpretive guidance provided by the
Commission or its staff, and agree to comply with reasonable requests made by
the Depositor or the Master Servicer in good faith for delivery of information
under these provisions on the basis of evolving interpretations of Regulation
AB. In connection with the Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-3, each of the Master Servicer,
the Special Servicer and the Trustee shall cooperate fully with the Depositor
and the Master Servicer, as applicable, to deliver to the Depositor or the
Trustee, as applicable (including any of their assignees or designees), any and
all information in its possession necessary in the good faith determination of
the Depositor or the Trustee, as applicable, to permit the Depositor to comply
with the provisions of Regulation AB, together with such disclosures relating to
the Master Servicer, the Special Servicer and the Trustee, as applicable, and
any Additional Servicer, Subcontractor, Servicing Function Participant or
Sub-Servicer, or the servicing of the Mortgage Loans, reasonably believed by the
Depositor or the Master Servicer, as applicable, to be necessary in order to
effect such compliance. Each party to this Agreement shall have a reasonable
period of time to comply with any written request made under this Section 11.01,
but in any event, shall, upon reasonable advance written request, provide
information in sufficient time to allow the Depositor or the Trustee, as
applicable, to satisfy any related filing requirements.
Section 11.02 Succession; Subcontractors.(a) (a) In connection
with the succession to the Master Servicer and Special Servicer or any
Sub-Servicer contemplated by Item 1108(a)(2) of Regulation AB as servicer or
Sub-Servicer under this Agreement by any Person (i) into which the Master
Servicer and Special Servicer or such Sub-Servicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Master
Servicer and Special Servicer or any Sub-Servicer, the Master Servicer and
Special Servicer shall provide to the Depositor, at least five Business Days
prior to the effective date of such succession or appointment, (x) written
notice to the Depositor of such succession or appointment and (y) in writing and
in form and substance reasonably satisfactory to the Depositor, all information
relating to such successor reasonably requested by the Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K pursuant to the
Exchange Act (if such reports under the Exchange Act are required to be filed
under the Exchange Act) pursuant to Section 11.07; provided, however, if
disclosing such information prior to such effective date would violate any
applicable law or confidentiality agreement, the Master Servicer or Special
Servicer, as applicable, shall submit such disclosure to the Depositor no later
than the second Business Day after such effective date of such succession or
appointment.
(b) Each of the Master Servicer, the Special Servicer, the
Sub-Servicer and the Trustee (each of the Master Servicer, the Special Servicer
and the Trustee and each Sub-Servicer, for purposes of this paragraph, a
"Servicer") is permitted to utilize one or more Subcontractors to perform
certain of its obligations hereunder. Such Servicer shall promptly upon request
provide to the Depositor a written description (in form and substance reasonably
satisfactory to the Depositor) of the role and function of each Subcontractor
that is a Servicing Function Participant utilized by such Servicer, specifying
(i) the identity of each Subcontractor, and (ii) which elements of the Servicing
Criteria will be addressed in assessments of compliance provided by such
Subcontractor. As a condition to the utilization by such Servicer of any
Subcontractor determined to be a Servicing Function Participant, such Servicer
shall use commercially reasonable efforts (including enforcement as such term is
described in Section 3.22(c)) to cause any such Subcontractor used by such
Servicer to comply with the provisions of Section 11.10 and Section 11.11 to the
same extent as if such Subcontractor were such Servicer. Such Servicer shall use
commercially reasonable efforts (including enforcement as such term is described
in Section 3.22(c)) to obtain from each such Subcontractor and delivering to the
applicable Persons any assessment of compliance report and related accountant's
attestation required to be delivered by such Subcontractor under Section 11.10
and Section 11.11, in each case, as and when required to be delivered.
(c) Notwithstanding the foregoing, if a Servicer engages a
Subcontractor in connection with the performance of any of its duties under this
Agreement, such Servicer shall be responsible for determining whether such
Subcontractor is a "servicer" within the meaning of Item 1101 of Regulation AB
and whether any such affiliate or third-party vendor meets the criteria in Item
1108(a)(2)(i), (ii) or (iii) of Regulation AB. If a Servicer determines,
pursuant to the preceding sentence, that such Subcontractor is a "servicer"
within the meaning of Item 1101 of Regulation AB and meets the criteria in Item
1108(a)(2)(i), (ii) or (iii) of Regulation AB, then such Subcontractor shall be
deemed to be an Additional Servicer for purposes of this Agreement, the
engagement of such Additional Servicer shall not be effective unless and until
notice is given to the Depositor and the Trustee of any such Additional Servicer
and Sub-Servicing Agreement or other servicing arrangement. Such notice shall
contain all information reasonably necessary to enable the Trustee to accurately
and timely report the event under Item 6.02 of Form 8-K pursuant to the Exchange
Act (if such reports under the Exchange Act are required to be filed under the
Exchange Act) pursuant to Section 11.07.
(d) In connection with the succession to the Trustee under this
Agreement by any Person (i) into which the Trustee may be merged or
consolidated, or (ii) which may be appointed as a successor to the Trustee, the
Trustee shall notify the Depositor, at least 10 Business Days prior to the
effective date of such succession or appointment and shall furnish to the
Depositor in writing and in form and substance reasonably satisfactory to the
Depositor, all information reasonably necessary for the Trustee to accurately
and timely report, pursuant to Section 11.07, the event under Item 6.02 of Form
8-K pursuant to the Exchange Act (if such reports under the Exchange Act are
required to be filed under the Exchange Act); provided, however, if disclosing
such information prior to such effective date would violate any applicable law
or confidentiality agreement, the Trustee shall submit such disclosure to the
Depositor no later than the second Business Day after such effective date of
such succession or appointment.
Section 11.03 Filing Obligations. (a) The Master Servicer, the
Special Servicer and the Trustee shall reasonably cooperate with the Depositor
in connection with the satisfaction of the Trust's reporting requirements under
the Exchange Act. The Trustee shall prepare for execution by the Depositor any
Forms 8-K, 10-D and 10-K required by the Exchange Act in order to permit the
timely filing thereof, and the Trustee shall file (via the Commission's
Electronic Data Gathering and Retrieval System) such Forms executed by the
Depositor.
(b) In the event that the Trustee is unable to timely file with
the Commission all or any required portion of any Form 8-K, 10-D or 10-K
required to be filed by this Agreement because required disclosure information
was either not delivered to it or delivered to it after the delivery deadlines
set forth in this Agreement, the Trustee will promptly notify the Depositor and
whichever party hereto failed to deliver, or delivered after any applicable
deadline, any required disclosure information. In the case of Forms 10-D and
10-K, the Depositor, the Master Servicer and the Trustee will thereupon
cooperate to prepare and file a Form 12b-25 and a Form 10-D/A or Form 10-K/A, as
applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case of Form
8-K, the Trustee will, upon receipt of all required Form 8-K Disclosure
Information, and upon direction of the Depositor, include such disclosure
information on the next Form 10-D. In the event that any previously filed Form
8-K, Form 10-D or Form 10-K needs to be amended, the Trustee will notify the
Depositor, and the parties hereto will cooperate to prepare any necessary Form
8-K/A, Form 10-D/A or Form 10-K/A; provided, however, the Trustee will not be
required to notify the Depositor or any other party hereto in advance of
amending Form 10-D where such amendment is solely for the purpose of re-stating
the Distribution Date Statement. Any Form 15, Form 12b-25 or any amendment to
Form 8-K, Form 10-D or Form 10-K shall be signed by an officer of the Depositor.
The parties hereto acknowledge that the performance by the Trustee of its duties
under Section 11.08 related to the timely preparation and filing of Form 15, a
Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K is contingent
upon such parties observing all applicable deadlines in the performance of their
duties under Sections 11.03, 11.04, 11.05, 11.07, 11.08, 11.09, 11.10 and 11.11.
The Trustee shall have no liability for any loss, expense, damage, claim arising
out of or with respect to any failure to properly prepare, arrange for execution
and/or timely file any such Form 15, Form 12b-25 or any amendments to Forms 8-K,
Form 10-D or Form 10-K, where such failure results from the Trustee's inability
or failure to receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 15, Form
12b-25 or any amendments to Forms 8-K, Form 10-D or Form 10-K, not resulting
from its own negligence, bad faith or willful misconduct.
Section 11.04 Form 10-D Filings. (a) Within 15 days after each
Distribution Date (subject to permitted extensions under the Exchange Act), the
Trustee shall prepare and file on behalf of the Trust any Form 10-D required by
the Exchange Act, in form and substance as required by the Exchange Act. The
Trustee shall file each Form 10-D with a copy of the related Statement to
Certificateholders attached thereto. Any disclosure in addition to the Statement
to Certificateholders that is required to be included on Form 10-D ("Additional
Form 10-D Disclosure") shall pursuant to the paragraph immediately below, be
reported by the parties set forth on Schedule IX to the Depositor and the
Trustee and approved by the Depositor, and the Trustee will have no duty or
liability for any failure hereunder to determine or prepare any Additional Form
10-D Disclosure absent such reporting, direction and approval; provided,
however, the Trustee shall promptly notify the Depositor of any such report that
it receives.
For so long as the Trust is subject to the reporting requirements
of the Exchange Act, as set forth on Schedule IX hereto, within five calendar
days after the related Distribution Date, (i) the parties listed on Schedule IX
hereto shall be required to provide to the Trustee and the Depositor, to the
extent a responsible officer has actual knowledge thereof, in XXXXX-compatible
format, or in such other format as otherwise agreed upon by the Trustee and the
Depositor and such party, the form and substance of the Additional Form 10-D
Disclosure described on Schedule IX hereto applicable to such party, (ii) the
parties listed on Schedule IX hereto shall include with such Additional Form
10-D Disclosure, an Additional Disclosure Notification in the form attached
hereto as Schedule XII and (iii) the Depositor shall approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-D Disclosure on Form 10-D. The Trustee has no duty under this Agreement
to monitor or enforce the performance by the parties listed on Schedule IX
hereto of their duties under this paragraph or proactively solicit or procure
from such parties any Additional Form 10-D Disclosure information. The Depositor
will be responsible for any reasonable fees assessed and any expenses incurred
by the Trustee in connection with including any Additional Form 10-D Disclosure
on Form 10-D pursuant to this paragraph.
(b) After preparing the Form 10-D, the Trustee shall forward
electronically a copy of the Form 10-D to the Depositor for review and approval.
No later than two Business Days prior to the 15th calendar day after the related
Distribution Date, a duly authorized representative of the Depositor shall sign
the Form 10-D and return an electronic or fax copy of such signed Form 10-D
(with an original executed hard copy to follow by overnight mail) to the
Trustee. If a Form 10-D cannot be filed on time or if a previously filed Form
10-D needs to be amended, the Trustee will follow the procedures set forth in
Section 11.03(b). Promptly after filing with the Commission, the Trustee will
make available on its internet website a final executed copy of each Form 10-D
prepared and filed by the Trustee. The signing party at the Depositor can be
contacted at: Xxxxxxx X. Xxxxx, Banc of America Securities LLC, 000 Xxxxx Xxxxx
Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Telephone No. (704)
000-0000, and Xxxx X. Xxxxxxx, Esq., Bank of America Corporation, 000 Xxxxx
Xxxxx Xxxxxx, 30th Floor, NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Telephone No. (000) 000-0000. The parties hereto acknowledge that the
performance by the Trustee of its duties under this Section 11.04(b) related to
the timely preparation and filing of Form 10-D is contingent upon the parties
observing all applicable deadlines in the performance of their duties under this
Section 11.04. The Trustee shall have no liability for any loss, expense,
damage, or claim arising out of or with respect to any failure to properly
prepare, arrange for execution and/or timely file such Form 10-D, where such
failure results from the Trustee's inability or failure to receive, on a timely
basis, any information from any party hereto needed to prepare, arrange for
execution or file such Form 10-D, not resulting from its own negligence, bad
faith or willful misconduct.
Form 10-D requires the registrant to indicate (by checking "yes"
or "no") that it "(1) has filed all reports required to be filed by Section 13
or 15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor shall
notify the Trustee in writing, no later than the fifth calendar day after the
related Distribution Date with respect to the filing of a report on Form 10-D if
the answer to the questions should be "no". The Trustee shall be entitled to
rely on such representations in preparing, executing and/or filing any Form
10-D.
Section 11.05 Form 10-K Filings. (a) Within 90 days after the end
of each fiscal year of the Trust or such earlier date as may be required by the
Exchange Act (the "10-K Filing Deadline"), commencing in March 2008, the Trustee
shall prepare and file on behalf of the Trust a Form 10-K, in form and substance
as required by the Exchange Act. Each such Form 10-K shall include the following
items, in each case to the extent they have been delivered to the Trustee within
the applicable time frames set forth in this Agreement:
(i) an annual compliance statement for the Master Servicer, the
Special Servicer, each Additional Servicer and the Trustee, as described
under Section 11.09;
(ii) (A) the annual reports on assessment of compliance with
servicing criteria for the Trustee, the Master Servicer, the Special
Servicer, any Additional Servicer, each Sub-Servicer engaged by the
Master Servicer or the Special Servicer and each Servicing Function
Participant utilized by the Master Servicer, the Special Servicer or the
Trustee, as described under Section 11.10, and (B) if any such report on
assessment of compliance with servicing criteria described under Section
11.10 identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if such report on
assessment of compliance with servicing criteria described under Section
11.10 is not included as an exhibit to such Form 10-K, disclosure that
such report is not included and an explanation why such report is not
included;
(iii) (A) the registered public accounting firm attestation
report for the Trustee, the Master Servicer, the Special Servicer, any
Additional Servicer, each Sub-Servicer engaged by the Master Servicer and
the Special Servicer and each Servicing Function Participant utilized by
the Master Servicer, the Special Servicer or the Trustee, as described
under Section 11.11, and (B) if any registered public accounting firm
attestation report described under Section 11.11 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm
attestation report is not included as an exhibit to such Form 10-K,
disclosure that such report is not included and an explanation why such
report is not included; and
(iv) a certification in the form attached hereto as Exhibit K,
with such changes as may be necessary or appropriate as a result of
changes promulgated by the Commission (the "Xxxxxxxx-Xxxxx
Certification"), which shall, except as described below, be signed by the
senior officer of the Depositor in charge of securitization.
Any disclosure or information in addition to clauses (i) through
(iv) of this Section 11.05 that is required to be included on Form 10-K
("Additional Form 10-K Disclosure") shall, pursuant to the paragraph immediately
below, be reported by the parties set forth on Schedule X to the Depositor and
the Trustee, and the Trustee will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-K Disclosure absent
such reporting, direction and approval; provided, however, the Trustee shall
promptly notify the Depositor of any Additional Form 10-K Disclosure that it
receives.
For so long as the Trust is subject to the reporting requirements
of the Exchange Act, no later than March 15, commencing in March 2008 (i) the
parties listed on Schedule X hereto shall be required to provide to the Trustee
and the Depositor, to the extent that a responsible officer has actual knowledge
thereof, in XXXXX-compatible format, or in such other format as otherwise agreed
upon by the Trustee and the Depositor and such party, the form and substance of
the Additional Form 10-K Disclosure described on Schedule X hereto applicable to
such party, (ii) the parties listed on Schedule X hereto shall include with such
Additional Form 10-K Disclosure, an Additional Disclosure Notification in the
form attached hereto as Schedule XII, (iii) the Depositor shall approve, as to
form and substance, or disapprove, as the case may be, the inclusion of the
Additional Form 10-K Disclosure on Form 10-K and (iv) the Trustee shall, at any
time prior to filing the related Form 10-K, provide prompt notice to the
Depositor to the extent that the Trustee is notified of an event reportable on
Form 10-K for which it has not received the necessary Additional Form 10-K
Disclosure from the applicable party. The Trustee has no duty under this
Agreement to monitor or enforce the performance by the parties listed on
Schedule X hereto of their duties under this paragraph or proactively solicit or
procure from such parties any Additional Form 10-K Disclosure information. The
Depositor will be responsible for any reasonable fees assessed and expenses
incurred by the Trustee in connection with including any Additional Form 10-K
Disclosure on Form 10-K pursuant to this paragraph.
(b) After preparing the Form 10-K, the Trustee shall forward
electronically a copy of the Form 10-K to the Depositor for review and approval
no later than five Business Days prior to the 10-K Filing Deadline. No later
than 5:00 p.m. Eastern Time on the fourth Business Day prior to the 10-K Filing
Deadline, the senior officer in charge of securitization of the Depositor shall
sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K
(with an original executed hard copy to follow by overnight mail) to the
Trustee. If a Form 10-K cannot be filed on time or if a previously filed Form
10-K needs to be amended, the Trustee will follow the procedures set forth in
Section 11.03(b). Promptly after filing with the Commission, the Trustee will
make available on its internet website a final executed copy of each Form 10-K
prepared and filed by the Trustee. The signing party at the Depositor can be
contacted at: Xxxxxxx X. Xxxxx, Banc of America Securities LLC, 000 Xxxxx Xxxxx
Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Telephone No. (704)
000-0000, and Xxxx X. Xxxxxxx, Esq., Bank of America Corporation, 000 Xxxxx
Xxxxx Xxxxxx, 30th Floor, NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Telephone No. (000) 000-0000. The parties hereto acknowledge that the
performance by the Trustee of its duties under this Section 11.05 related to the
timely preparation and filing of Form 10-K is contingent upon such parties
observing all applicable deadlines in the performance of their duties under this
Section 11.05. The Trustee shall have no liability for any loss, expense,
damage, claim arising out of or with respect to any failure to properly prepare,
arrange for execution and/or timely file such Form 10-K, where such failure
results from the Trustee's inability or failure to receive, on a timely basis,
any information from any party hereto needed to prepare, arrange for execution
or file such Form 10-K, not resulting from its own negligence, bad faith or
willful misconduct.
Form 10-K requires the registrant to indicate (by checking "yes"
or "no") that it "(1) has filed all reports required to be filed by Section 13
or 15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor shall
notify the Trustee in writing, no later than the 15th calendar day of March in
any year in which the Trust is required to file a Form 10-K if the answer to the
questions should be "no". The Trustee shall be entitled to rely on such
representations in preparing, executing and/or filing any Form 10-K.
Section 11.06 Xxxxxxxx-Xxxxx Certification. Each Form 10-K shall
include a Xxxxxxxx-Xxxxx Certification in the form attached as Exhibit K
required to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act. The Master
Servicer, the Special Servicer, any Additional Servicer and the Trustee shall,
and the Master Servicer, the Special Servicer and the Trustee shall use
commercially reasonable efforts (including enforcement as such term is described
in Section 3.22(c)) to cause each Servicing Function Participant with which it
has entered into a servicing relationship with respect to the Mortgage Loans to,
provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the
"Certifying Person") a certification in the form attached hereto as Exhibit L,
on which the Certifying Person, the entity for which the Certifying Person acts
as an officer (if the Certifying Person is an individual), and such entity's
officers, directors and Affiliates (collectively with the Certifying Person,
"Certification Parties") can reasonably rely. In addition, in the event that the
Companion Loan related to a Serviced Whole Loan is deposited into a commercial
mortgage securitization, each Reporting Servicer shall provide to the Person who
signs the Xxxxxxxx-Xxxxx Certification with respect to the securitization of the
Companion Loan related to a Serviced Whole Loan a certification in the form
attached hereto as Exhibit K (a "Performance Certification") (which shall
address the matters contained in such certification, but solely with respect to
the related Companion Loan) on which such Person, the entity for which the
Person acts as an officer (if the Person is an individual), and such entity's
officers, directors and Affiliates can reasonably rely. With respect to any
Non-Serviced Loan serviced under a Non-Serviced Loan Pooling Agreement, the
Master Servicer will use its reasonable efforts to procure a Xxxxxxxx-Xxxxx
back-up certification from the Non-Serviced Loan Master Servicer, Non-Serviced
Loan Special Servicer and the Non-Serviced Loan Trustee in form and substance
similar to a Performance Certification. The senior officer in charge of the
securitization for the Depositor shall serve as the Certifying Person. In
addition, the Master Servicer, the Special Servicer, any Additional Servicer,
the Trustee and any Servicing Function Participant shall execute a reasonable
reliance certificate to enable the Certification Parties to rely upon each (i)
annual compliance statement provided pursuant to Section 11.09, (ii) annual
report on assessment of compliance with servicing criteria provided pursuant to
Section 11.10 and (iii) accountant's report provided pursuant to Section 11.11,
and shall include a certification that each such annual compliance statement or
report discloses any deficiencies or defaults described to the registered public
accountants of the Master Servicer, the Special Servicer, any Additional
Servicer, the Trustee or any Servicing Function Participant to enable such
accountants to render the attestation reports provided for in Section 11.11. In
the event the Master Servicer, the Special Servicer, any Additional Servicer,
the Trustee or any Servicing Function Participant is terminated or resigns
pursuant to the terms of this Agreement, or any applicable sub-servicing
agreement or primary servicing agreement, as the case may be, such party shall
provide a certification to the Certifying Person pursuant to this Section 11.06
with respect to the period of time it was subject to this Agreement or the
applicable sub-servicing or primary servicing agreement, as the case may be.
Section 11.07 Form 8-K Filings. Within four (4) Business Days
after the occurrence of an event requiring disclosure on Form 8-K (each such
event, a "Reportable Event"), and if requested by the Depositor, the Trustee
shall prepare and file on behalf of the Trust any Form 8-K, as required by the
Exchange Act, provided that the Depositor shall file the initial Form 8-K in
connection with the issuance of the Certificates. Any disclosure or information
related to a Reportable Event or that is otherwise required to be included on
Form 8-K ("Form 8-K Disclosure Information") shall, pursuant to the paragraph
immediately below, be reported by the parties set forth on Schedule XI hereto to
the Depositor and the Trustee and approved by the Depositor, and the Trustee
will have no duty or liability for any failure hereunder to determine or prepare
any Form 8-K Disclosure Information absent such reporting, direction and
approval; provided, however, the Trustee shall promptly notify the Depositor of
any Form 8-K Disclosure that it receives.
As set forth on Schedule XI hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than the end of
business on the second Business Day after the occurrence of a Reportable Event:
(i) the parties listed on Schedule XI hereto shall be required to provide to the
Trustee and the Depositor, to the extent a responsible officer has actual
knowledge thereof, in XXXXX-compatible format, or in such other format as
otherwise agreed upon by the Trustee and the Depositor and such party, the form
and substance of the Form 8-K Disclosure Information described on Schedule XI
hereto applicable to such party; (ii) the parties listed on Schedule XI hereto
shall include with such additional Form 8-K Disclosure ("Additional Form 8-K
Disclosure"), an Additional Disclosure Notification in the form attached hereto
as Schedule XII; and (iii) the Depositor shall approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 8-K Disclosure on Form 8-K. The Trustee has no duty under this Agreement to
monitor or enforce the performance by the parties listed on Schedule XI hereto
of their duties under this paragraph or proactively solicit or procure from such
parties any Form 8-K Disclosure Information. The Depositor will be responsible
for any reasonable fees assessed and out-of-pocket expenses incurred by the
Trustee in connection with including any Form 8-K Disclosure Information on Form
8-K pursuant to this paragraph.
After preparing the Form 8-K, the Trustee shall forward
electronically a copy of the Form 8-K to the Depositor for review and approval
no later than the third Business Day after the Reportable Event (but in no event
earlier than 24 hours after having received the Form 8-K Disclosure Information
pursuant to the immediately preceding paragraph). No later than the close of
business on the third Business Day after the Reportable Event, the Depositor
shall notify the Trustee of any changes to or approval of such Form 8-K. No
later than Noon (New York City time) on the fourth Business Day after the
Reportable Event, a duly authorized representative of the Depositor shall sign
the Form 8-K and return an electronic or fax copy of such signed Form 8-K (with
an original executed hard copy to follow by overnight mail) to the Trustee. If a
Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be
amended, the Trustee will follow the procedures set forth in this Section 11.07.
Promptly after filing with the Commission, the Trustee will, make available on
its internet website a final executed copy of each Form 8-K prepared by the
Trustee. The signing party at the Depositor can be contacted at Xxxxxxx X.
Xxxxx, Banc of America Securities LLC, 000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Telephone No. (000) 000-0000, and Xxxx X.
Xxxxxxx, Esq., Bank of America Corporation, 000 Xxxxx Xxxxx Xxxxxx, 30th Floor,
NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Telephone No. (000) 000-0000.
The parties hereto acknowledge that the performance by the Trustee of its duties
under this Section 11.07 related to the timely preparation and filing of Form
8-K is contingent upon such parties observing all applicable deadlines in the
performance of their duties under this Section 11.07. The Trustee shall have no
liability for any loss, expense, damage, claim arising out of or with respect to
any failure to properly prepare, arrange for execution and/or timely file such
Form 8-K, where such failure results from the Trustee's inability or failure to
receive, on a timely basis, any information from any party hereto needed to
prepare, arrange for execution or file such Form 8-K, not resulting from its own
negligence, bad faith or willful misconduct.
Section 11.08 Form 15 Filing. On or prior to January 30 of the
first year in which the Trustee is able to do so under applicable law, the
Trustee shall prepare and file a Form 15 Suspension Notification relating to the
automatic suspension of reporting in respect of the Trust under the Exchange
Act. If at the beginning of any year after the filing of a Form 15 Suspension
Notification, if the number of Certificateholders of record exceeds the number
set forth in Section 15(d) of the Exchange Act that would cause the Trust to
again become subject to the reporting requirements of the Exchange Act, the
Trustee shall recommence preparing and filing reports on Forms 10-D, 10-K and
8-K as required pursuant to Section 11.04, Section 11.05 and Section 11.07.
With respect to any reporting period occurring after the filing
of Form 15, the obligations of the parties to this Agreement under Sections
11.01, 11.02, 11.04, 11.05, 11.06 and 11.07 shall be suspended for so long as
the Trust is not subject to the reporting requirements of the Exchange Act. The
Trustee shall promptly notify (which notice, notwithstanding the provisions of
Section 12.05, may be sent by facsimile, telephone or by email and which shall
include the identity of those Reporting Servicers who did not deliver such
information) the Depositor and each Reporting Servicer that failed to deliver
such information, if all, or any portion of, any required disclosure information
to be included in any Form 8-K, Form 10-D or Form 10-K required to be filed
pursuant to this Agreement is not delivered to it within the delivery deadlines
set forth in this Agreement (including annual compliance statements pursuant to
Section 11.09, annual reports on assessment of compliance with servicing
criteria pursuant to Section 11.10 and attestation reports pursuant to Section
11.11) (exclusive of any grace or cure periods), but only to the extent the
Trustee has actual knowledge that the Master Servicer or Special Servicer
required to provide such disclosure information has not done so. Such notice
does not affect the tolling of any grace or cure period with respect to the
deadline of any obligation of any party contained in this Article XI.
Section 11.09 Annual Compliance Statements. The Trustee, the
Master Servicer and the Special Servicer shall, and the Master Servicer or
Special Servicer shall use commercially reasonable efforts (including
enforcement as such term is described in Section 3.22(c)) to cause each
Additional Servicer with which it has entered into a servicing relationship with
respect to the Mortgage Loans to, deliver to the Depositor and the Trustee on or
before March 15 of each year, commencing in March 2008, an Officer's Certificate
stating, as to the Certifying Servicer, that (A) a review of such Certifying
Servicer's activities during the preceding calendar year or portion thereof and
of such Certifying Servicer's performance under this Agreement, or the
applicable sub-servicing agreement or primary servicing agreement in the case of
an Additional Servicer, has been made under such officer's supervision and (B)
to the best of such officer's knowledge, based on such review, such Certifying
Servicer has fulfilled all its obligations under this Agreement, or the
applicable sub-servicing agreement or primary servicing agreement in the case of
an Additional Servicer, in all material respects throughout such year or portion
thereof, or, if there has been a failure to fulfill any such obligation in any
material respect, specifying each such failure known to such officer and the
nature and status thereof. Promptly after receipt of each such Officer's
Certificate, the Depositor shall review each such Officer's Certificate and, if
applicable, consult with such Certifying Servicer as to the nature of any
failures by such Certifying Servicer, or any related Additional Servicer with
which such Certifying Servicer has entered into a servicing relationship with
respect to the Mortgage Loans in the fulfillment of any of such Certifying
Servicer's obligations hereunder or under the applicable Sub-Servicing Agreement
or primary servicing agreement. The obligations of each Certifying Servicer
under this Section 11.09 apply to the extent that such Certifying Servicer
serviced a Mortgage Loan during the applicable period, whether or not the Master
Servicer, the Special Servicer or Additional Servicer is acting as a Certifying
Servicer at the time such Officer's Certificate is required to be delivered. In
the event the Master Servicer, the Special Servicer or the Trustee is terminated
or resigns pursuant to the terms of this Agreement, such party shall provide,
and the Master Servicer shall use its reasonable efforts to cause any Certifying
Servicer that resigns or is terminated under any applicable servicing agreement
to provide, an annual statement of compliance pursuant to this Section 11.09
with respect to the period of time that the Master Servicer, the Special
Servicer or the Trustee was subject to this Agreement or the period of time that
the Certifying Servicer was subject to such other servicing agreement. No
Certifying Servicer shall be required to cause the delivery of any such
Officer's Certificate until April 15 in any given year so long as it has
received written confirmation from the Depositor that a Report on Form 10-K is
not required to be filed in respect of the Trust for the preceding calendar
year.
Section 11.10 Annual Reports on Assessment of Compliance with
Servicing Criteria. (a) On or before March 15 of each year, commencing in March
2008, the Master Servicer, the Special Servicer and the Trustee, each at its own
expense, shall furnish, and each such party shall use commercially reasonable
efforts (including enforcement as such term is described in Section 3.22(c)) to
cause each Servicing Function Participant with which it has entered into a
servicing relationship with respect to the Mortgage Loans to furnish (each, a
"Reporting Servicer"), to the Trustee and the Depositor, a report on an
assessment of compliance with the Relevant Servicing Criteria that contains (A)
a statement by such Reporting Servicer of its responsibility for assessing
compliance with the Relevant Servicing Criteria, (B) a statement that such
Reporting Servicer used the Relevant Servicing Criteria as the basis for such
report, (C) such Reporting Servicer's assessment of compliance with the Relevant
Servicing Criteria as of and for the period ending the end of the fiscal year
covered by the Form 10-K required to be filed pursuant to Section 11.05,
including, if there has been any material instance of noncompliance with the
Relevant Servicing Criteria, a discussion of each such failure and the nature
and status thereof, and (D) a statement that a registered public accounting firm
has issued an attestation report on such Reporting Servicer's assessment of
compliance with the Relevant Servicing Criteria as of and for such period.
Each such report shall be addressed to the Depositor and signed
by an authorized officer of the applicable company, and shall address each of
the Relevant Servicing Criteria specified in Schedule VIII hereto delivered to
the Depositor on the Closing Date. Promptly after receipt of each such report,
(i) the Depositor shall review each such report and, if applicable, consult with
each Reporting Servicer as to the nature of any material instance of
noncompliance with the Servicing Criteria applicable to it, and (ii) the Trustee
shall confirm that the assessments, taken individually address the Relevant
Servicing Criteria and notify the Depositor of any exceptions. No Reporting
Servicer shall be required to cause the delivery of any such assessments until
April 15 in any given year so long as it has received written confirmation from
the Depositor that a Report on Form 10-K is not required to be filed in respect
of the Trust for the preceding calendar year.
(b) On the Closing Date, the Master Servicer, the Special
Servicer and the Trustee shall furnish to the Depositor and the Trustee the
Relevant Servicing Criteria applicable to it, in the form of Schedule VIII
hereto appropriately completed (indicating thereon any Servicing Function
Participant that the Master Servicer, Special Servicer or Trustee has entered
into a servicing relationship).
(c) No later than the end of each fiscal year for the Trust, the
Master Servicer and the Special Servicer shall notify the Trustee and the
Depositor and the other parties to this Agreement as to the name of each
Servicing Function Participant utilized by it, and the Trustee shall notify the
Depositor as to the name of each Servicing Function Participant utilized by it,
and each such notice will specify what specific Servicing Criteria will be
addressed in the report on assessment of compliance prepared by such Servicing
Function Participant. When the Master Servicer, the Special Servicer and the
Trustee submit their assessments pursuant to Section 11.10(a), the Master
Servicer, the Special Servicer and the Trustee, as applicable, will also at such
time use commercially reasonable efforts to include the assessment (and related
attestation pursuant to Section 11.11) of each Servicing Function Participant
engaged by it.
Section 11.11 Annual Independent Public Accountants' Servicing
Report. On or before March 15th of each year, commencing in March 2008, the
Master Servicer, the Special Servicer and the Trustee, each at its own expense,
shall cause, and the Master Servicer, the Special Servicer and the Trustee shall
use commercially reasonable efforts (including enforcement as such term is
described in Section 3.22(c)) to cause each Servicing Function Participant with
which it has entered into a servicing relationship with respect to the Mortgage
Loans to cause, a registered public accounting firm (which may also render other
services to the Master Servicer, the Special Servicer, the Trustee or the
applicable Servicing Function Participant, as the case may be) and that is a
member of the American Institute of Certified Public Accountants to furnish a
report to the Trustee and the Depositor to the effect that (i) it has obtained a
representation regarding certain matters from the management of such Reporting
Servicer, which includes an assertion that such Reporting Servicer has complied
with the Relevant Servicing Criteria in all material respects and (ii) on the
basis of an examination conducted by such firm in accordance with standards for
attestation engagements issued or adopted by the Public Company Accounting
Oversight Board, it is issuing an opinion as to whether such Reporting
Servicer's assessment of compliance with the Relevant Servicing Criteria was
fairly stated in all material respects. In the event that an overall opinion
cannot be expressed, such registered public accounting firm shall state in such
report why it was unable to express such an opinion. Each such related
accountant's attestation report shall be made in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act. Such report must be available for general use and not contain
restricted use language.
Promptly after receipt of such report from the Master Servicer,
the Special Servicer, the Trustee or any Servicing Function Participant, (i) the
Depositor shall review the report and, if applicable, consult with the Master
Servicer, the Special Servicer or the Trustee as to the nature of any defaults
by the Master Servicer, the Special Servicer, the Trustee or any Servicing
Function Participant with which it has entered into a servicing relationship
with respect to the Mortgage Loans, as the case may be, in the fulfillment of
any of the Master Servicer's, the Special Servicer's, the Trustee's, the
Trustee's or the applicable Servicing Function Participants' obligations
hereunder or under the applicable sub-servicing or primary servicing agreement,
and (ii) the Trustee shall confirm that each accountants' attestation report
submitted pursuant to this Section relates to an assessment of compliance
meeting the requirements of Section 11.10 and notify the Depositor of any
exceptions.
Section 11.12 Indemnification. Each of the Master Servicer, the
Special Servicer and the Trustee shall indemnify and hold harmless each
Certification Party from and against any claims, losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments and
other costs and expenses incurred by such Certification Party arising out of an
actual breach by the Master Servicer, the Special Servicer or the Trustee, as
the case may be, of its obligations under this Article XI.
The Master Servicer and the Special Servicer shall use
commercially reasonable efforts (including enforcement as such term is described
in Section 3.22(c)) to cause each Additional Servicer and each Servicing
Function Participant with which, in each case, it has entered into a servicing
relationship with respect to the Mortgage Loans to indemnify and hold harmless
each Certification Party from and against any and all claims, losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments and any other costs, fees and expenses incurred by such Certification
Party arising out of (i) a breach of its obligations to provide any of the
annual compliance statements or annual assessment of compliance reports or
attestation reports pursuant to the applicable sub-servicing or primary
servicing agreement or (ii) any failure by a Servicer (as defined in Section
11.02(b)) to identify a Servicing Function Participant pursuant to Section
11.02(c).
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Party, then the Master Servicer,
the Special Servicer, the Trustee, any Additional Servicer or other Servicing
Function Participant (the "Performing Party") shall contribute to the amount
paid or payable to the Certification Party as a result of the losses, claims,
damages or liabilities of the Certification Party in such proportion as is
appropriate to reflect the relative fault of the Certification Party on the one
hand and the Performing Party on the other in connection with a breach of the
Performing Party's obligations pursuant to Sections 11.06, 11.09, 11.10 or 11.11
(or breach of its obligations under the applicable sub-servicing or primary
servicing agreement to provide any of the annual compliance statements or annual
servicing criteria compliance reports or attestation reports). The Master
Servicer and Special Servicer shall use commercially reasonable efforts
(including enforcement as such term is described in Section 3.22(c)) to cause
each Additional Servicer or Servicing Function Participant, in each case, with
which it has entered into a servicing relationship with respect to the Mortgage
Loans to agree to the foregoing indemnification and contribution obligations.
This Section 11.12 shall survive the termination of this Agreement or the
earlier resignation or removal of the Master Servicer or the Special Servicer.
Section 11.13 Signatures; Article XI Notices. Each Form 8-K
report and Form 10-D report shall be signed by the Depositor. The Depositor
shall provide its signature to the Trustee by electronic or fax transmission
(with hard copy to follow by overnight mail) no later than the 13th calendar day
following the related Distribution Date for Form 10-D, and not later than noon
on the date of filing for Form 8-K (provided, that in each case the Trustee
shall not file the related form until the Depositor has given its approval
thereof). If a Form 8-K or Form 10-D cannot be filed on time or if a previously
filed Form 8-K or Form 10-D needs to be amended, the Trustee will follow the
procedures set forth in this Article XI.
With respect to any notice required to be delivered by the
Trustee to the Depositor pursuant to Article XI, the Trustee may deliver such
notice, notwithstanding any contrary provision in Section 12.05 via facsimile to
(000) 000-0000, via email to xxxxxxx.x.xxxxx@xxxxxxxxxxxxx.xxx or telephonically
by calling Xxxxxxx Xxxxx at (000) 000-0000.
Section 11.14 Amendments. This Article XI (other than with
respect to the reports and certifications set forth in Section 11.09 and Section
11.11) may be amended by the parties hereto pursuant to Section 12.01 for
purposes of complying with Regulation AB and the Xxxxxxxx-Xxxxx Act and/or to
conform to standards developed within the commercial mortgage-backed securities
market without any Opinions of Counsel, Officer's Certificates, Rating Agency
confirmations or the consent of any Certificateholder, notwithstanding anything
to the contrary contained in this Agreement.
Section 11.15 Certain Matters Relating to the Securitization of
Companion Loans.
(a) Notwithstanding any other provision herein to the contrary,
including, without limitation, any time deadlines for delivery set forth in this
Article XI, in connection with the requirements contained in this Article XI
that provide for the delivery of information and other items to, and the
cooperation with, the depositor and trustee of any securitization subject to
Regulation AB involving any Companion Loan (a "Regulation AB Companion Loan
Securitization"), no party hereunder shall be obligated to provide any such
items to or cooperate with such depositor or trustee (i) unless it is required
to deliver corresponding information and other items with respect to such
Regulation AB Companion Loan Securitization, (ii) until the depositor or the
trustee of such Regulation AB Companion Loan Securitization has provided each
party hereto with not less than 30 days written notice (which shall only be
required to be delivered once) certifying that such Regulation AB Companion Loan
Securitization is subject to Regulation AB and is subject to Exchange Act
reporting, and (iii) specifying in reasonable detail the information and other
items requested to be delivered; provided that if Exchange Act reporting is
being requested, such depositor or trustee is only required to provide a single
written notice to such effect. Any reasonable cost and expense of the Master
Servicer, Special Servicer and the Trustee in cooperating with such depositor or
trustee of such other securitization trust (above and beyond their expressed
duties hereunder) shall be the responsibility of such depositor or other
securitization trust. The parties hereto shall have the right to confirm in good
faith with the depositor of such Regulation AB Companion Loan Securitization as
to whether Regulation AB requires the delivery of the items identified in this
Article XI to the depositor and trustee of the such Regulation AB Companion Loan
Securitization prior to providing any of the reports or other information
required to be delivered under this Article XI in connection therewith. Upon
such confirmation, the parties shall comply with the time deadlines for delivery
set forth in this Article XI with respect to such Regulation AB Companion Loan
Securitization. The parties hereunder shall also have the right to require that
such depositor provide them with the contact details of the depositor, the
trustee and any other parties to the Non-Serviced Loan Pooling Agreement
relating to such Regulation AB Companion Loan Securitization.
(b) Each of the Master Servicer and the Special Servicer shall,
upon reasonable prior written request given in accordance with the terms of
Section 11.15(a) (and the Master Servicer and the Special Servicer and the
Trustee shall use commercially reasonable efforts to cause any sub-servicer
appointed with respect to any Companion Loan to permit), permit a holder of any
Companion Loan to use such party's description contained in the Prospectus
Supplement (including the annexes thereto) (updated as appropriate by the Master
Servicer or the Special Servicer, as applicable) for inclusion in the disclosure
materials relating to any securitization of any Companion Loan.
(c) The Master Servicer and the Special Servicer, upon reasonable
prior written request given in accordance with the terms of Section 11.15(a),
shall each timely provide (to the extent the reasonable cost thereof is paid or
caused to be paid by the requesting party) to the depositor and any underwriters
with respect to the securitization of any Companion Loan such opinion(s) of
counsel, certifications and/or indemnification agreement(s) with respect to the
updated description referred in Section 11.15(a) with respect to such party,
substantially identical to those, if any, delivered by the Master Servicer or
the Special Servicer, as the case may be, or their respective counsel, in
connection with the information concerning such party in the Prospectus
Supplement and/or any other disclosure materials relating to this transaction
(updated as deemed appropriate by the Master Servicer or the Special Servicer,
or their respective legal counsel, as the case may be).
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders or any Companion Loan Holder, (i) to cure any ambiguity, (ii)
to correct, modify or supplement any provision herein that may be defective or
may be inconsistent with any other provision herein, (iii) to add any other
provisions with respect to matters or questions arising hereunder that shall not
be inconsistent with the provisions hereof, (iv) to relax or eliminate any
requirement hereunder imposed by the REMIC Provisions if the REMIC Provisions
are amended or clarified such that any such requirement may be relaxed or
eliminated; (v) if such amendment, as evidenced by an Opinion of Counsel
delivered to the Trustee and the REMIC Administrator, is reasonably necessary to
comply with any requirements imposed by the Code or any successor or amendatory
statute or any temporary or final regulation, revenue ruling, revenue procedure
or other written official announcement or interpretation relating to federal
income tax laws or any such proposed action that, if made effective, would apply
retroactively to REMIC I or REMIC II at least from the effective date of such
amendment, or would be necessary to avoid the occurrence of a prohibited
transaction or to reduce the incidence of any tax that would arise from any
actions taken with respect to the operation of REMIC I or REMIC II; (vi) to
modify, add to or eliminate any provisions of Section 5.02(d)(i), (ii) or (iii);
or (vii) for any other purpose; provided that such amendment (other than any
amendment for the specific purposes described in clauses (v) and (vi) of this
Section 12.01(a)) shall not, as evidenced by an Opinion of Counsel obtained by
or delivered to the Trustee, adversely affect in any material respect the
interests of any Certificateholder without such Certificateholder's written
consent; provided, further, such amendment shall not adversely affect in any
material respect the rights and obligations of the related Mortgage Loan Seller
without such Mortgage Loan Seller's written consent; provided, further, such
amendment shall not adversely affect in any material respect the rights and
obligations of the related Companion Loan Holder without such Companion Loan
Holder's written consent; and provided, further, such amendment (other than any
amendment for any of the specific purposes described in clauses (i) through (vi)
of this Section 12.01(a)) shall not result in a downgrade, qualification (if
applicable) or withdrawal of any rating then assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency (as evidenced by
written confirmation to such effect from each Rating Agency obtained by or
delivered to the Trustee).
(b) This Agreement may also be amended from time to time by the
mutual agreement of the parties hereto, with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Holders of Certificates or any Companion Loan
Holder; provided, however, no such amendment shall (i) reduce in any manner the
amount of, or delay the timing of, payments received or advanced on the Mortgage
Loans and any REO Properties that are required to be distributed on any
Certificate without the written consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of any
Class of Certificates in a manner other than as described in clause (b)(i) of
this Section 12.01(b) without the written consent of the Holders of all
Certificates of such Class, (iii) change the definition of the Servicing
Standard, without the written consent of the Holders of all Certificates
outstanding, or (iv) modify the provisions of this Section 12.01 without the
written consent of the Holders of all Certificates then outstanding.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 12.01, Certificates
registered in the name of the Depositor, the Master Servicer, the Special
Servicer or any of their respective Affiliates shall be entitled to the same
Voting Rights with respect to matters described above as they would if any other
Person held such Certificates. For purposes of this Section 12.01(b), a Class of
Certificates is an "affected Class" if and only if it would, as the result of
any such amendment, experience any of the effects described in clauses (i), (ii)
and (iii) of this Section 12.01(b).
(c) At the direction of the Holders of Certificates entitled to
100% of the Voting Rights allocated to the affected Classes, and with the
agreement of all of the parties hereto (none of which shall withhold its
agreement unless its obligations hereunder would be materially increased), this
Agreement shall be amended for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates, including
without limitation, (i) to cause such Classes to be restructured, (ii) to create
in connection with any restructuring one or more new classes of Certificates,
which may include, without limitation, one or more classes of Certificates
entitled to payments of principal on a priority basis from collections in
respect of some or all of the Mortgage Loans, (iii) to make in connection with
any such restructuring one or more additional REMIC elections with respect to
the Trust Fund, (iv) to provide for the book-entry registration of any such
existing or newly created classes of Certificates, and (v) to provide for any
Holders of any Classes of Non-Registered Certificates remaining as such after
giving effect to such amendment to receive or have the right to request to
receive any statements, reports or other information that the Holders of the
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class Q and Class S Certificates are entitled to receive or
request to receive under this Agreement. For purposes of this Section 12.01(c),
a Class of Certificates is an "affected Class" if and only if it would, as the
result of any such amendment, experience any of the effects described in clauses
(i), (ii) and (iii) of Section 12.01(b). Any restructuring pursuant to this
Section 12.01(c) shall require, at the expense of the requesting Holders, the
prior written approval of each Rating Agency and confirmation of the ratings of
each such Class of Certificates (taking into account such restructuring),
including confirmation that such restructuring will not result in the downgrade,
qualification (if applicable) or withdrawal of the ratings then assigned to the
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class Q and Class S Certificates.
(d) Notwithstanding any contrary provision of this Agreement,
neither the Trustee nor the REMIC Administrator shall consent to any amendment
to this Agreement unless it shall first have obtained or been furnished with an
Opinion of Counsel to the effect that such amendment or the exercise of any
power granted to any party hereto in accordance with such amendment will not
result in the imposition of a tax on REMIC I or REMIC II pursuant to the REMIC
Provisions or cause REMIC I or REMIC II to fail to qualify as a REMIC at any
time that any Certificates are outstanding or either Grantor Trust to fail to
qualify as a grantor trust at any time that any Certificates are outstanding.
(e) Promptly after the execution of any such amendment, the
Trustee shall furnish a copy of the amendment to each Certificateholder and each
Companion Loan Holder.
(f) It shall not be necessary for the consent of
Certificateholders under this Section 12.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe; provided
that such consents shall be in writing.
(g) The Trustee may but shall not be obligated to enter into any
amendment pursuant to this Section 12.01 that affects its rights, duties and
immunities under this Agreement or otherwise.
(h) The cost of any Opinion of Counsel to be delivered pursuant
to Section 12.01(a) or (d) shall be borne by the Person seeking the related
amendment, except that if the Trustee requests any amendment of this Agreement
in furtherance of the rights and interests of Certificateholders, the cost of
any Opinion of Counsel required in connection therewith pursuant to Section
12.01(a) or (d) shall be payable out of the Distribution Account.
(i) Notwithstanding any contrary provisions of this Agreement,
this Agreement may not be amended in a manner that would adversely affect the
distributions to the Class A-2FL Swap Counterparty or the Class A-2FL
Certificates or the rights of the Class A-2FL Swap Counterparty under the Class
A-2FL Swap Contract or the rights of the Holders of the Class A-2FL Certificates
without the consent of the Class A-2FL Swap Counterparty and 100% of the Holders
of the Class A-2FL Certificates.
(j) Notwithstanding any contrary provisions of this Agreement,
this Agreement may not be amended in a manner that would adversely affect the
distributions to the Class A-MFL Swap Counterparty or the Class A-MFL
Certificates or the rights of the Class A-MFL Swap Counterparty under the Class
A-MFL Swap Contract or the rights of the Holders of the Class A-MFL Certificates
without the consent of the Class A-MFL Swap Counterparty and 100% of the Holders
of the Class A-MFL Certificates.
Section 12.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust on direction by the
Trustee, but only (i) upon direction accompanied by an Opinion of Counsel (the
reasonable cost of which may be paid out of the Distribution Account) to the
effect that such recordation materially and beneficially affects the interests
of the Certificateholders and (ii) upon consent of the Directing
Certificateholder. It is acknowledged that the Trustee has no obligation to
monitor whether such recordation in necessary under this Section 12.02.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 12.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder or any
Companion Loan Holder shall not operate to terminate this Agreement or the
Trust, nor entitle such Certificateholder's or Companion Loan Holder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder or any Companion Loan Holder shall have
any right to vote (except as expressly provided for herein) or in any manner
otherwise control the operation and management of the Trust Fund, or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Certificates, be construed so as to constitute the
Certificateholders and/or any Companion Loan Holder from time to time as
partners or members of an association; nor shall any Certificateholder or
Companion Loan Holder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder or Companion Loan Holder shall have any
right by virtue of any provision of this Agreement to institute any suit, action
or proceeding in equity or at law upon or under or with respect to this
Agreement or any Loan, unless, with respect to any suit, action or proceeding
upon or under or with respect to this Agreement, such Holder or any Companion
Loan Holder previously shall have given to the Trustee a written notice of
default hereunder, and of the continuance thereof, as hereinbefore provided, and
(except in the case of a default by the Trustee) the Holders of Certificates
entitled to at least 25% of the Voting Rights shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding. It is understood and intended,
and expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatsoever by virtue of any provision of this
Agreement to affect, disturb or prejudice the rights of the Holders of any other
of such Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, which priority or preference is not otherwise provided
for herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 12.03(c), each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 12.04 Governing Law.
This Agreement and the Certificates shall be construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in said State, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
Section 12.05 Notices.
Any communications provided for or permitted hereunder shall be
in writing and, unless otherwise expressly provided herein, shall be deemed to
have been duly given when delivered to:
(i) in the case of Banc of America Commercial Mortgage Inc., 000
Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Xxxxxxx Xxxxx, telecopy number: (000) 000-0000 (with a copy to
Xxxx Xxxxxxx, Esq., Assistant General Counsel, Bank of America
Corporation, Bank of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx
(30th Floor, NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, telecopy
number: (000) 000-0000 and with a copy to: Xxxxx X. XxXxxx, Esq.,
Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 28202);
(ii) in the case of the Master Servicer, Bank of America,
National Association, Capital Markets Servicing Group, NC1-026-06-01, 000
Xxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Servicing Manager, telecopy number: (000) 000-0000, Reference: Banc of
America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-3, and with a copy to: Xxxxx X. XxXxxx, Esq.,
Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000;
(iii) in the case of the Special Servicer, Midland Loan Services,
Inc., 00000 Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000 (for
deliveries), and X.X. Xxx 00000, Xxxxxxx Xxxxxxx, Xxxxxx 00000-0000 (for
communications by United States mail), Attention: President, telecopy
number: (000) 000-0000;
(iv) in the case of the Trustee and REMIC Administrator, Xxxxx
Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Services (CMBS), Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-3, telecopy number: (000) 000-0000;
(v) in the case of the Rating Agencies, (A) Fitch, Inc., Xxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial
Mortgage-Backed Securities Surveillance, telecopy number: (000) 000-0000;
(B) Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: CMBS--Monitoring, facsimile number (000) 000-0000; and
(C) Standard & Poor's Ratings Services, Inc., a division of The
XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 10041-0003, Attention: Commercial Mortgage Group Surveillance
Manager, telecopy number (000) 000-0000;
(vi) in the case of the initial Directing Certificateholder,
Anthracite Capital, Inc., at Anthracite Capital, Inc., 00 Xxxx 00xx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxx and
Xxxxxx Xxxxxx, telecopy number: (000) 000-0000;
(vii) in the case of the initial Metropolis Shopping Center
Controlling Holder, Anthracite Capital, Inc., at Anthracite Capital,
Inc., 00 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxx and Xxxxxx Xxxxxx, telecopy number: (212)
754-8758;
(viii) in the case of the initial Pacifica Tower Controlling
Holder, Bank of America, National Association, 000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxx,
telecopy number: (000) 000-0000 (with copies to Xxxx X. Xxxxxxx, Esq.,
Assistant General Counsel, at Bank of America Corporate Center, 000 Xxxxx
Xxxxx Xxxxxx, 30th Floor, NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
and to Xxxxx X. XxXxxx, Esq., Cadwalader, Xxxxxxxxxx & Xxxx LLP, 227 West
Trade Street, Suite 2400, Charlotte, North Carolina 28202);
or as to each such Person such other address as may hereafter be
furnished by such Person to the parties hereto in writing. Any communication
required or permitted to be delivered to a Certificateholder shall be deemed to
have been duly given when mailed first class, postage prepaid, to the address of
such Holder as shown in the Certificate Register.
Section 12.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement or of the Certificates or the rights of the Holders thereof.
Section 12.07 Successors and Assigns; Beneficiaries.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the parties
hereto, and all such provisions shall inure to the benefit of the
Certificateholders. Each Companion Loan Holder (and any designees thereof acting
on behalf of or exercising the rights of such Companion Loan Holder) and
(subject to any limited recourse provisions contained in the Class A-2FL Swap
Contract or the Class A-MFL Swap Contract) the Class A-2FL Swap Counterparty and
the Class A-MFL Swap Counterparty shall be third-party beneficiaries to this
Agreement with respect to their rights as specifically provided for herein and
may directly enforce such rights. Except as specifically contemplated by Section
3.22, Section 3.24, Section 6.03 and Section 8.05, no other person, including,
without limitation, any Mortgagor, shall be entitled to any benefit or equitable
right, remedy or claim under this Agreement.
(b) Each of the Trustee, the Special Servicer and the Master
Servicer acknowledges that each of the trustee, master servicer and special
servicer of a Securitized Companion Loan Securitization is an intended
third-party beneficiary under this Agreement, subject to the terms of this
Agreement, (i) with respect to Section 3.05(f) and (ii) any provisions herein
relating to (1) the reimbursement of any nonrecoverable advances made with
respect to the related Mortgage Loan by such Persons, (2) the indemnification of
the trustee, master servicer and special servicer of a Securitized Companion
Loan Securitization pursuant to Section 6.03 against any claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments and any
other costs, liabilities, fees and expenses incurred in connection with the
Securitized Companion Loan Pooling Agreement and this Agreement that relate
solely to its servicing of the related Serviced Whole Loan and any related
reimbursement provisions and (3) the provisions set forth in Section 4.03(f)
regarding advancing coordination.
Section 12.08 Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 12.09 Notices to and from Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default hereunder that has
not been cured;
(iii) the resignation or termination of the Master Servicer, the
Special Servicer or the REMIC Administrator and the appointment of a
successor;
(iv) any change in the location of the Distribution Account, the
REMIC I Distribution Account, the Class A-2FL Floating Rate Account, the
Class A-MFL Floating Rate Account, the REMIC II Distribution Account or
the Excess Liquidation Proceeds Account;
(v) the final payment to any Class of Certificateholders; and
(vi) the repurchase of any Mortgage Loan by a Mortgage Loan
Seller pursuant to Section 2.03.
(b) The Master Servicer shall promptly provide notice to each
Rating Agency with respect to each of the following of which it has
actual knowledge:
(i) the resignation or removal of the Trustee and the appointment
of a successor; and
(ii) any change in the location of the Certificate Account.
(c) The Trustee, the Master Servicer and the Special Servicer, as
applicable, shall furnish to each Rating Agency, with respect to each Loan such
information as the Rating Agency shall reasonably request and that the Trustee,
the Master Servicer or the Special Servicer can reasonably provide in accordance
with applicable law and without waiving any attorney-client privilege relating
to such information. The Trustee, the Master Servicer and the Special Servicer,
as applicable, may include any reasonable disclaimer they deem appropriate with
respect to such information.
(d) Each of the Master Servicer and the Special Servicer shall
promptly furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 11.09; and
(ii) each of its annual independent public accountants' servicing
reports described in Section 11.11, if any.
In addition, as and to the extent required by Section 3.12(a) and
(b), each of the Master Servicer and the Special Servicer shall promptly furnish
to each Rating Agency copies or summaries (in such format as will be acceptable
to the Rating Agency) of any of the written reports (including, without
limitation, reports regarding property inspections) prepared, and any of the
quarterly and annual or other periodic operating statements and rent rolls
collected, by it pursuant to Section 3.12(b).
(e) The Trustee shall promptly furnish each Rating Agency on a
monthly basis, to the extent not made available on the Trustee's Website, copies
of the statements to the Holders of the Regular Certificates required by the
first paragraph of Section 4.02(a).
(f) To the extent reasonably possible, all information and
reports delivered or made available to the Rating Agencies, any Companion Loan
Holder, any Controlling Holder or a Holder of a Non-Registered Certificate
(except a Class R-I or Class R-II Certificate) (if requested by such Holder), by
any of the Trustee, the Master Servicer or the Special Servicer pursuant to this
Section 12.09, shall be so delivered or otherwise made available through an
electronic medium.
(g) Each Rating Agency shall provide to the Trustee, upon its
request, a listing of the then current rating on any Certificate then
outstanding.
Section 12.10 Requests for Information; Standing Requests.
(a) Any Holder of a Non-Registered Certificate (except a Class
R-I or Class R-II Certificate) shall be entitled to, upon request to the Master
Servicer, receive a copy from the Master Servicer, of any notice or report to be
delivered hereunder to the Directing Certificateholder, at the requesting
party's request.
(b) For the avoidance of doubt, it is noted that to the extent
that Rating Agency, any Companion Loan Holder, any Controlling Holder, as
applicable, or any Holder of a Non-Registered Certificate (except a Class R-I or
Class R-II Certificate) is stated herein to be entitled to obtain from the
Master Servicer or the Special Servicer, upon request, any particular report or
other item of information obtained or prepared with respect to the Loans by the
parties to this Agreement in the course of their performance hereof, such
request by such Person may take the form of a standing request to the Master
Servicer or the Special Servicer, as the case may be, to receive all such
reports or items until further notice.
Section 12.11 Insolvency.
The Master Servicer, Special Servicer, Depositor and Trustee
shall each notify the Depositor and the Trustee of any of the events enumerated
in Item 1.03 of Form 8-K with respect to any of the Master Servicer, Special
Servicer, Depositor or Trustee as least two Business Days prior to the effective
date thereof and shall provide the Depositor and the Trustee with all
information required by the Depositor to comply with its reporting obligation
under Item 1.03 of Form 8-K not later than the effective date of any such event.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused their names to
be signed hereto by their respective officers or representatives thereunto duly
authorized, in each case as of the day and year first above written.
BANC OF AMERICA COMMERCIAL MORTGAGE
INC., as Depositor,
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Master Servicer,
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Principal
MIDLAND LOAN SERVICES, INC., as
Special Servicer,
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
XXXXX FARGO BANK, N.A., as Trustee and
REMIC Administrator,
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 26th day of July 2007, before me, a notary public in and
for said State, personally appeared Xxxx X. Xxxxxx known to me to be a Vice
President of BANC OF AMERICA COMMERCIAL MORTGAGE INC. one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such person
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxxx X. Xxxxxxx
Notary Public
[Notarial Seal]
My commission expires:
February 4, 0000
XXXXX XX XXXXX XXXXXXXX )
) ss.:
COUNTY OF MECKLENBURG )
On the 26th day of July 2007, before me, a notary public in and
for said State, personally appeared Xxxx X. Xxxxxx known to me to be a Principal
of BANK OF AMERICA, NATIONAL ASSOCIATION, one of the entities that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such person executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxxx X. Xxxxxxx
Notary Public
[Notarial Seal]
My commission expires:
February 4, 2008
STATE OF KANASAS )
) ss.:
COUNTY OF XXXXXXX )
On the 20th day of July 2007, before me, a notary public in and for said State,
personally appeared Xxxxxxxx X. Xxxxxx, known to me to be a Senior Vice
President of MIDLAND LOAN SERVICES, INC., one of the entities that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such person executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/ Xxxxx Xxxxxx
-----------------------------------
Notary Public
[Notarial Seal]
My commission expires:
January 30, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 26th day of July 2007, before me, a notary public in and
for said State, personally appeared Xxxx X. Xxxxxxx, known to me to be a Vice
President of XXXXX FARGO BANK, N.A. which executed the within instrument, and
also known to me to be the person who executed it on behalf of such entity, and
acknowledged to me that such person executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxxxx
-----------------------------------
Notary Public
[Notarial Seal]
My commission expires:
Jan. 3, 2009
Exhibit A-1
Form of Class A-1 Certificate
CLASS A-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$50,000,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-1
July 1, 2007 Certificates as of the Issue Date:
$50,000,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: A-1-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the within
mentioned Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-2
Form of Class A-2 Certificate
CLASS A-2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$334,000,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-2
July 1, 2007 Certificates as of the Issue Date:
$334,000,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: A-2-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the within
mentioned Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-3
Form of Class A-2FL Certificate
CLASS A-2FL COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Floating Certificate as of the Issue Date:
$150,000,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class
July 1, 2007 A-2FL Certificates as of the Issue Date:
$150,000,000
Cut-off Date: Initial Pool Balance:
July 1, 2007 $3,515,654,613
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: A-2FL-[1] CUSIP No.: [__________](1)
[__________](2)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A BENEFICIAL
OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT"
(A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND CERTAIN OTHER ASSETS.
EACH BENEFICIAL OWNER OF THIS CERTIFICATE THAT IS OR IS ACTING ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF ERISA) THAT IS SUBJECT TO
TITLE I OF ERISA, A PLAN (AS DEFINED IN SECTION 4975 OF THE CODE) THAT IS
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN THAT IS SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW THAT IS MATERIALLY SIMILAR TO SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE SHALL BE DEEMED TO REPRESENT THAT THE ACQUISITION AND HOLDING
OF THIS CERTIFICATE ARE ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AT
LEAST ONE OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 00-00, XXXX 00-0,
XXXX 00-00, XXXX 00-00 XX XXXX 96-23 OR A SIMILAR EXEMPTION UNDER APPLICABLE
SIMILAR LAW.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
----------------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2FL Certificates referred to in the within
mentioned Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Remaining Principal Amount Notation
Date Book-Entry Certificate of Book Entry Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-4
Form of Class A-3 Certificate
CLASS A-3 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$133,000,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-3
July 1, 2007 Certificates as of the Issue Date:
$133,000,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: A-3-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Certificates referred to in the within
mentioned Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: __________________________________
Authorized Signatory
ASSIGNMENT
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-5
Form of Class A-AB Certificate
CLASS A-AB COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$78,944,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-AB
July 1, 2007 Certificates as of the Issue Date:
$78,944,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: A-AB-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-4 Certificates referred to in the within
mentioned Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
ASSIGNMENT
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-6
Form of Class A-4 Certificate
CLASS A-4 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$[500,000,000] [500,000,000]
[17,000,000]
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-4
July 1, 2007 Certificates as of the Issue Date:
$1,017,000,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: A-4-[1] [2] [3] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-4 Certificates referred to in the within
mentioned Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-7
Form of Class A-5 Certificate
CLASS A-5 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
5.3770% Certificate as of the Issue Date:
$[50,000,000]
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-5
July 1, 2007 Certificates as of the Issue Date:
$50,000,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: A-5-[1] [2] [3] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-5 Certificates referred to in the within
mentioned Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
ASSIGNMENT
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-8
Form of Class A-1A Certificate
CLASS A-1A COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$[500,000,000] $[148,014,000]
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-1A
July 1, 2007 Certificates as of the Issue Date:
$648.014,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: A-1A-[1] [2] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1A Certificates referred to in the within
mentioned Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-9
Form of Class XW Certificate
CLASS XW COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Notional Amount of this
Variable Certificate as of the Issue Date:
$[500,000,000] $[500,000,000]
$[500,000,000] $[500,000,000]
$[500,000,000] $[500,000,000]
$[500,000,000] $[15,654,613]
Date of Pooling and Servicing Agreement: Class Notional Amount of all the Class XW
July 1, 2007 Certificates as of the Issue Date:
$3,172,686,516
Cut-off Date: Initial Pool Balance: $3,172,686,516
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: XW-[1] [2] [3] [4] [5] CUSIP No.: [__________]
[6] [7] [8]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the notional
principal amount of this Certificate (its "Certificate Notional Amount") as of
the Issue Date by the aggregate notional principal balance of all the
Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest in
the Trust Fund evidenced by all the Certificates of the same Class as this
Certificate. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator identified above. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class XW Certificates referred to in the within mentioned
Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-10
Form of Class A-M Certificate
CLASS A-M COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$116,565,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-M
July 1, 2007 Certificates as of the Issue Date:
$116,565,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: A-M-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-M Certificates referred to in the within
mentioned Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-11
Form of Class A-MF Certificate
CLASS A-MF COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
5.3170% Certificate as of the Issue Date:
$100,000,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-MF
July 1, 2007 Certificates as of the Issue Date:
$100,000,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: A-MF-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-MF Certificates referred to in the within
mentioned Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-12
Form of Class A-MFL Certificate
CLASS A-MFL COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Floating Certificate as of the Issue Date:
$135,000,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class
July 1, 2007 A-MFL Certificates as of the Issue Date:
$135,000,000
Cut-off Date: Initial Pool Balance:
July 1, 2007 $3,515,654,613
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: A-MFL-[1] CUSIP No.: [__________](1)
[__________](2)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A BENEFICIAL
OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT"
(A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND CERTAIN OTHER ASSETS.
EACH BENEFICIAL OWNER OF THIS CERTIFICATE THAT IS OR IS ACTING ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF ERISA) THAT IS SUBJECT TO
TITLE I OF ERISA, A PLAN (AS DEFINED IN SECTION 4975 OF THE CODE) THAT IS
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN THAT IS SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW THAT IS MATERIALLY SIMILAR TO SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE SHALL BE DEEMED TO REPRESENT THAT THE ACQUISITION AND HOLDING
OF THIS CERTIFICATE ARE ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AT
LEAST ONE OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 00-00, XXXX 00-0,
XXXX 00-00, XXXX 00-00 XX XXXX 96-23 OR A SIMILAR EXEMPTION UNDER APPLICABLE
SIMILAR LAW.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
----------------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-MFL Certificates referred to in the within
mentioned Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Remaining Principal Amount Notation
Date Book-Entry Certificate of Book Entry Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-13
Form of Class A-J Certificate
CLASS A-J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$241,701,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-J
July 1, 2007 Certificates as of the Issue Date:
$241,701,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: A-J-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-J Certificates referred to in the within
mentioned Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-14
Form of Class B Certificate
CLASS B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$35,157,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class B
July 1, 2007 Certificates as of the Issue Date:
$35,157,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: B-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the within mentioned
Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-15
Form of Class C Certificate
CLASS C COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2007-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$48,340,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class C
July 1, 2007 Certificates as of the Issue Date:
$48,340,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: C-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the within mentioned
Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-16
Form of Class D Certificate
CLASS D COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$26,368,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class D
July 1, 2007 Certificates as of the Issue Date:
$26,368,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: D-[1] CUSIP No.: [__________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the within mentioned
Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Remaining Principal Amount Notation
Date Book-Entry Certificate of Book Entry Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-17
Form of Class E Certificate
CLASS E COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
[RULE 144A](1) [REG S](2) [DEFINITIVE](3) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$[___________]
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class E
July 1, 2007 Certificates as of the Issue Date:
$26,367,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: E-[1] CUSIP No.: [__________](1)
[__________](2)
[__________](3)
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that [Cede & Co.] [_________] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Banc
of America Commercial Mortgage Inc., as Depositor, and the Master Servicer, the
Special Servicer and the Trustee and REMIC Administrator identified above. To
the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.]
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
----------------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
(3) For Definitive Certificates only.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the within mentioned
Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Remaining Principal Amount Notation
Date Book-Entry Certificate of Book Entry Certificate Made By
----------------- -------------------------------------- -------------------------- --------
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-18
Form of Class F Certificate
CLASS F COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$35,157,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class F
July 1, 2007 Certificates as of the Issue Date:
$35,157,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: F-[1] CUSIP No.: [__________](1)
[__________](2)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
----------------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the within mentioned
Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Remaining Principal Amount Notation
Date Book-Entry Certificate of Book Entry Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-19
Form of Class G Certificate
CLASS G COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$30,762,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class G
July 1, 2007 Certificates as of the Issue Date:
$30,762,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: G-[1] CUSIP No.: [__________](1)
[__________](2)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
----------------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the within mentioned
Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Remaining Principal Amount Notation
Date Book-Entry Certificate of Book Entry Certificate Made By
----------------- -------------------------------------- -------------------------- --------
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----------------- -------------------------------------- -------------------------- --------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-20
Form of Class H Certificate
CLASS H COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$48,340,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class H
July 1, 2007 Certificates as of the Issue Date:
$48,340,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: H-[1] CUSIP No.: [__________](1)
[__________](2)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
----------------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the within mentioned
Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Remaining Principal Amount Notation
Date Book-Entry Certificate of Book Entry Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-21
Form of Class J Certificate
CLASS J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$35,156,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class J
July 1, 2007 Certificates as of the Issue Date:
$35,156,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: J-[1] CUSIP No.: [__________](1)
[__________](2)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
----------------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the within mentioned
Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Remaining Principal Amount Notation
Date Book-Entry Certificate of Book Entry Certificate Made By
----------------- -------------------------------------- -------------------------- --------
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----------------- -------------------------------------- -------------------------- --------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-22
Form of Class K Certificate
CLASS K COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$43,946,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class K
July 1, 2007 Certificates as of the Issue Date:
$43,946,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: K-[1] CUSIP No.: [__________](1)
[__________](2)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
----------------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the within mentioned
Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Remaining Principal Amount Notation
Date Book-Entry Certificate of Book Entry Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-23
Form of Class L Certificate
CLASS L COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$26,367,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class L
July 1, 2007 Certificates as of the Issue Date:
$26,367,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: L-[1] CUSIP No.: [__________](1)
[__________](2)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
----------------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class L Certificates referred to in the within mentioned
Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Remaining Principal Amount Notation
Date Book-Entry Certificate of Book Entry Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-24
Form of Class M Certificate
CLASS M COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$4,395,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class M
July 1, 2007 Certificates as of the Issue Date:
$4,395,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: M-[1] CUSIP No.: [__________](1)
[__________](2)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
----------------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the within mentioned
Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Remaining Principal Amount Notation
Date Book-Entry Certificate of Book Entry Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-25
Form of Class N Certificate
CLASS N COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$17,578,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class N
July 1, 2007 Certificates as of the Issue Date:
$17,578,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: N-[1] CUSIP No.: [__________](1)
[__________](2)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer, and the Trustee, the REMIC Administrator identified above. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, and the Trustee, the
REMIC Administrator, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
----------------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class N Certificates referred to in the within mentioned
Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Remaining Principal Amount Notation
Date Book-Entry Certificate of Book Entry Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-26
Form of Class O Certificate
CLASS O COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$4,395,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class O
July 1, 2007 Certificates as of the Issue Date:
$4,395,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: O-[1] CUSIP No.: [__________](1)
[__________](2)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
----------------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class O Certificates referred to in the within mentioned
Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Remaining Principal Amount Notation
Date Book-Entry Certificate of Book Entry Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-27
Form of Class P Certificate
CLASS P COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$8,789,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class P
July 1, 2007 Certificates as of the Issue Date:
$8,789,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: P-[1] CUSIP No.: [__________](1)
[__________](2)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
----------------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the within mentioned
Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Remaining Principal Amount Notation
Date Book-Entry Certificate of Book Entry Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-28
Form of Class Q Certificate
CLASS Q COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$13,184,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class Q
July 1, 2007 Certificates as of the Issue Date:
$13,184,000
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: Q-[1] CUSIP No.: [__________](1)
[__________](2)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
----------------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class Q Certificates referred to in the within mentioned
Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Remaining Principal Amount Notation
Date Book-Entry Certificate of Book Entry Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-29
Form of Class S Certificate
CLASS S COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$57,129,613
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class S
July 1, 2007 Certificates as of the Issue Date:
$57,129,613
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: S-[1] CUSIP No.: [__________](1)
[__________](2)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
----------------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class S Certificates referred to in the within mentioned
Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Remaining Principal Amount Notation
Date Book-Entry Certificate of Book Entry Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-30
Form of Class R-I Certificate
CLASS R-I COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this
July 1, 2007 Certificate in the related Class:
100%
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: R-I-[1]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY GOVERNMENTAL
PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES THE "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT.
EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY. IF
ANY PERSON BECOMES THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF
SUCH TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL
FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO
HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that Bank of America, National Association is the registered
owner of the Percentage Interest evidenced by this Certificate (as specified
above) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing upon the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, Distribution Account and, if established, the REO Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii) of such Section 5.02(d) to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer and the Trustee and REMIC Administrator of any change or impending
change in its status as a Permitted Transferee. In connection with any proposed
transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest herein unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
"Permitted Transferee": means any Transferee of this Certificate other than
any of a Plan or a Person acting on behalf of or using the assets of a Plan, a
Disqualified Organization, a Disqualified Non-U.S. Person, an entity treated as
a U.S. partnership for federal income tax purposes if any of its direct or
indirect partners (other than through a U.S. corporation) is (or is permitted to
be under the related partnership agreement) a Disqualified Non-U.S. Person or a
U.S. Person with respect to whom income on a Residual Certificate is
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person or any nominee, agent or middleman of any of the above.
"Disqualified Non-U.S. Persons": means any Non-U.S. Person or agent
thereof other than (i) a Non-U.S. Person that holds this Certificate in
connection with the conduct of a trade or business within the United States and
has furnished the transferor and the Certificate Registrar with an effective IRS
Form W-8ECI (or successor form) or (ii) a Non-U.S. Person that has delivered to
both the transferor and the Certificate Registrar an opinion of a nationally
recognized tax counsel to the effect that the transfer of this Certificate to it
is in accordance with the requirements of the Code and the regulations
promulgated thereunder and that such transfer of this Certificate will not be
disregarded for federal income tax purposes.
"Disqualified Organization": means any of: (i) the United States or a
possession thereof, any State or any political subdivision thereof, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
that is a corporation if all of its activities are subject to tax and, except
for Xxxxxxx Mac, a majority of its board of directors is not selected by any
such governmental unit), (ii) a foreign government, international organization,
or any agency or instrumentality of either of the foregoing, (iii) any
organization (except certain farmers' cooperatives described in Section 521 of
the Code) that is exempt from the tax imposed by Chapter 1 of the Code (unless
such organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the REMIC Administrator based upon an Opinion of Counsel (provided
to the Trustee by such Person at its expense) that the holding of an Ownership
Interest in a Residual Certificate by such Person may cause the Trust or any
Person having an Ownership Interest in any Class of Certificates, other than
such Person, to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms "United States",
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
"Non-U.S. Person": means any person other than a U.S. Person. "U.S. Person":
means a citizen or resident of the United States, a corporation or partnership
(except to the extent provided in the applicable Treasury regulations) created
or organized in, or under the laws of, the United States any State thereof or
the District of Columbia, including an entity treated as a corporation or
partnership for federal income tax purposes, or an estate whose income is
subject to United States federal income tax regardless of its source, or a trust
if a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more such U.S. Persons have the
authority to control all substantial decisions of the trust (or, to the extent
provided in applicable Treasury regulations, certain trusts in existence on
August 20, 1996 that are eligible to elect to be treated as U.S. Persons).
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the within
mentioned Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Remaining Principal Amount Notation
Date Book-Entry Certificate of Book Entry Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-31
Form of Class R-II Certificate
CLASS R-II COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this
July 1, 2007 Certificate in the related Class:
100%
Cut-off Date: Initial Pool Balance: $3,515,654,613
July 1, 2007
Issue Date:
July 26, 2007
First Distribution Date:
August 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
Midland Loan Services, Inc.
Certificate No.: R-II-[1]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY GOVERNMENTAL
PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES THE "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT.
EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY. IF
ANY PERSON BECOMES THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF
SUCH TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL
FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO
HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that Bank of America, National Association is the registered
owner of the Percentage Interest evidenced by this Certificate (as specified
above) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing upon the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, Distribution Account and, if established, the REO Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii) of such Section 5.02(d) to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer and the Trustee and REMIC Administrator of any change or impending
change in its status as a Permitted Transferee. In connection with any proposed
transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest herein unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
"Permitted Transferee": means any Transferee of this Certificate other than
any of a Plan or a Person acting on behalf of or using the assets of a Plan, a
Disqualified Organization, a Disqualified Non-U.S. Person, an entity treated as
a U.S. partnership for federal income tax purposes if any of its direct or
indirect partners (other than through a U.S. corporation) is (or is permitted to
be under the related partnership agreement) a Disqualified Non-U.S. Person or a
U.S. Person with respect to whom income on a Residual Certificate is
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person or any nominee, agent or middleman of any of the above.
"Disqualified Non-U.S. Persons": means any Non-U.S. Person or agent thereof
other than (i) a Non-U.S. Person that holds this Certificate in connection with
the conduct of a trade or business within the United States and has furnished
the transferor and the Certificate Registrar with an effective IRS Form W-8ECI
(or successor form) or (ii) a Non-U.S. Person that has delivered to both the
transferor and the Certificate Registrar an opinion of a nationally recognized
tax counsel to the effect that the transfer of this Certificate to it is in
accordance with the requirements of the Code and the regulations promulgated
thereunder and that such transfer of this Certificate will not be disregarded
for federal income tax purposes.
"Disqualified Organization": means any of: (i) the United States or a
possession thereof, any State or any political subdivision thereof, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
that is a corporation if all of its activities are subject to tax and, except
for Xxxxxxx Mac, a majority of its board of directors is not selected by any
such governmental unit), (ii) a foreign government, international organization,
or any agency or instrumentality of either of the foregoing, (iii) any
organization (except certain farmers' cooperatives described in Section 521 of
the Code) that is exempt from the tax imposed by Chapter 1 of the Code (unless
such organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the REMIC Administrator based upon an Opinion of Counsel (provided
to the Trustee by such Person at its expense) that the holding of an Ownership
Interest in a Residual Certificate by such Person may cause the Trust or any
Person having an Ownership Interest in any Class of Certificates, other than
such Person, to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms "United States",
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
"Non-U.S. Person": means any person other than a U.S. Person. "U.S. Person":
means a citizen or resident of the United States, a corporation or partnership
(except to the extent provided in the applicable Treasury regulations) created
or organized in, or under the laws of, the United States any State thereof or
the District of Columbia, including an entity treated as a corporation or
partnership for federal income tax purposes, or an estate whose income is
subject to United States federal income tax regardless of its source, or a trust
if a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more such U.S. Persons have the
authority to control all substantial decisions of the trust (or, to the extent
provided in applicable Treasury regulations, certain trusts in existence on
August 20, 1996 that are eligible to elect to be treated as U.S. Persons).
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the within
mentioned Agreement.
Dated: July 26, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By: ___________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Remaining Principal Amount Notation
Date Book-Entry Certificate of Book Entry Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________ (please
print or typewrite name and address including postal zip code of assignee) the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
EXHIBIT B
FORM OF INVESTMENT REPRESENTATION LETTER
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS) - Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 0000-0
Xxxx xx Xxxxxxx Commercial Mortgage Inc.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-3
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of July 1, 2007 (the "Pooling and Servicing
Agreement"), by and among Banc of America Commercial Mortgage Inc., as
Depositor, Bank of America, National Association, as Master Servicer, Midland
Loan Services, Inc., as Special Servicer, and Xxxxx Fargo Bank, N.A., as Trustee
and REMIC Administrator on behalf of the holders of Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-3 (the
"Certificates"), in connection with the transfer by _________________ (the
"Seller") to the undersigned (the "Purchaser") of $_______________ aggregate
Certificate Balance of Class ___ Certificates (the "Certificate"). Capitalized
terms used and not otherwise defined herein shall have the respective meanings
ascribed to such terms in the Pooling and Servicing Agreement.
In connection with such transfer, the Purchaser hereby represents and
warrants to you and the addressees hereof as follows:
(1) Check one of the following:*
|_| The Purchaser is an institutional "accredited investor" (an
entity meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation
D under the Securities Act of 1933, as amended (the "1933 Act")) and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of its investment in the Certificates, and the
Purchaser and any accounts for which it is acting are each able to bear the
economic risk of the Purchaser's or such account's investment. The Purchaser is
acquiring the Certificates purchased by it for its own account or for one or
more accounts (each of which is an "institutional accredited investor") as to
each of which the Purchaser exercises sole investment discretion. The Purchaser
hereby undertakes to reimburse the Trust Fund for any costs incurred by it in
connection with this transfer.
|_| The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the Securities Act of 1933,
as amended (the "1933 Act"). The Purchaser is aware that the transfer is being
made in reliance on Rule 144A, and the Purchaser has had the opportunity to
obtain the information required to be provided pursuant to paragraph (d)(4)(i)
of Rule 144A.
(2) The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale (i) to
"qualified institutional buyers" in transactions under Rule 144A, and not
in any event with the view to, or for resale in connection with, any
distribution thereof, or (ii) (other than with respect to the REMIC
Residual Certificates) to institutional "accredited investors" meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D
promulgated under the 1933 Act and applicable state securities laws,
pursuant to any other exemption from the registration requirements of the
1933 Act and applicable state securities laws, subject in the case of this
clause (ii) to (w) the receipt by the Certificate Registrar of a letter
substantially in the form hereof, (x) the receipt by the Certificate
Registrar of an opinion of counsel acceptable to the Certificate Registrar
that such reoffer, resale, pledge or transfer is in compliance with the
1933 Act, (y) the receipt by the Certificate Registrar of such other
evidence acceptable to the Certificate Registrar that such reoffer,
resale, pledge or transfer is in compliance with the 1933 Act and other
applicable laws and (z) a written undertaking to reimburse the Trust for
any costs incurred by it in connection with the proposed transfer. The
Purchaser understands that the Certificate (and any subsequent
Certificate) has not been registered under the 1933 Act, by reason of a
specified exemption from the registration provisions of the 1933 Act which
depends upon, among other things, the bona fide nature of the Purchaser's
investment intent (or intent to resell to only certain investors in
certain exempted transactions) as expressed herein.
(3) The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the
opportunity to ask questions and receive answers concerning the terms and
conditions of the transactions contemplated by the Private Placement
Memorandum.
(4) The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been
registered or qualified under the 1933 Act or the securities laws of any
State or any other jurisdiction, and that the Certificate cannot be resold
unless it is registered or qualified thereunder or unless an exemption
from such registration or qualification is available.
(5) The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an
owner of a Certificate or Certificates, as the case may be (each, a
"Certificateholder"), in all respects as if it were a signatory thereto.
This undertaking is made for the benefit of the Trust, the Certificate
Registrar and all Certificateholders present and future.
(6) The Purchaser will not sell or otherwise transfer any portion of
the Certificate or Certificates, except in compliance with Section 5.02 of
the Pooling and Servicing Agreement.
(7) Check one of the following:*
|_| The Purchaser is a U.S. Tax Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or successor
form).
|_| The Purchaser is not a "U.S. Tax Person" and under applicable
law in effect on the date hereof, no taxes will be required to be withheld by
the Certificate Registrar (or its agent) with respect to distributions to be
made on the Certificate. The Purchaser has attached hereto [(i) a duly executed
IRS Form W-8BEN (or successor form), which identifies such Purchaser as the
beneficial owner of the Certificate and states that such Purchaser is not a U.S.
Tax Person, (ii) two duly executed copies of IRS Form W-8IMY (with all
appropriate attachments) or (iii)]** two duly executed copies of IRS Form W-8ECI
(or successor form), which identify such Purchaser as the beneficial owner of
the Certificate and state that interest and original issue discount on the
Certificate and Permitted Investments is, or is expected to be, effectively
connected with a United States trade or business. The Purchaser agrees to
provide to the Certificate Registrar an updated [IRS Form W-8BEN, IRS Form
W-8IMY or]** IRS Form W-8ECI, as the case may be, any applicable successor IRS
forms, or such other certifications as the Certificate Registrar may reasonably
request, on or before the date that any such IRS form or certification expires
or becomes obsolete, or promptly after the occurrence of any event requiring a
change in the most recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Tax Person" means a citizen or resident of
the United States for United States federal income tax purposes, a corporation
or partnership (except to the extent provided in applicable Treasury
regulations) created or organized in or under the laws of the United States, any
State thereof or the District of Columbia, including any entity treated as a
corporation or partnership for federal income tax purposes, an estate the income
of which is subject to United States federal income taxation regardless of its
source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more
United States fiduciaries have the authority to control all substantial
decisions of such trust (or, to the extent provided in applicable Treasury
regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Tax Persons).
(8) Please make all payments due on the Certificates:***
|_| (A) by wire transfer to the following account at a bank or
entity in New York, New York, having appropriate facilities therefor:
Bank: _________________________________________
ABA#: _________________________________________
Account #: ___________________________________
Attention: ___________________________________
|_| (B) by mailing a check or draft to the following address:
________________________________________________
________________________________________________
________________________________________________
Very truly yours,
_______________________________________
[The Purchaser]
By:____________________________________
Name:
Title:
Dated:
----------
* Each Purchaser must include one of the following two alternative
certifications.
* Each Purchaser must include one of the two alternative certifications.
** Omit for Class R-I and Class R-II.
*** Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b). For holders of Definitive Certificates, wire transfers are
only available if such holder's Definitive Certificates have an aggregate
Certificate Balance or Notional Amount, as applicable, of at least U.S.
$5,000,000.
EXHIBIT C-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
PURSUANT TO SECTION 5.02(d)(i)(B)
STATE OF )
)
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says that:
(1) He/She is the [Title of Officer] of [Name of Prospective
Transferee] (the prospective transferee (the "Transferee") of a Banc of
America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificate, Series 2007-3, Class R-[I] [II] evidencing a ____% Percentage
Interest in the Class to which it belongs (the "REMIC Residual
Certificate")), a __________________________________ duly organized and
validly existing under the laws of [the State of ____] [the United
States], on behalf of which he/she makes this affidavit. Capitalized terms
used but not defined herein have the respective meanings assigned thereto
in the Pooling and Servicing Agreement pursuant to which the REMIC
Residual Certificate was issued (the "Pooling and Servicing Agreement").
(2) The Transferee (i) is [and, as of [date of transfer], will be] a
Permitted Transferee and will endeavor to remain a Permitted Transferee
for so long as it holds the REMIC Residual Certificate, and (ii) is
acquiring the REMIC Residual Certificate for its own account or for the
account of another prospective transferee from which it has received an
affidavit in substantially the same form as this affidavit.
(3) The Transferee is aware (i) of the tax that would be imposed on
transfers of the REMIC Residual Certificate to Disqualified Organizations
under the Internal Revenue Code of 1986, as amended; (ii) that such tax
would be imposed on the transferor, or, if such transfer is through an
agent (which person includes a broker, nominee or middleman) for a
Disqualified Organization (defined below), on the agent; (iii) that the
person otherwise liable for the tax shall be relieved of liability for the
tax if the transferee furnishes to such person an affidavit that the
transferee is not a Disqualified Organization and, at the time of
transfer, such person does not have actual knowledge that the affidavit is
false; and (iv) that the REMIC Residual Certificate may be a "non-economic
residual interest" within the meaning of Treasury Regulations Section
1.860E-1(c) and that the transferor of a "non-economic residual interest"
will remain liable for any taxes due with respect to the income on such
residual interest, unless no significant purpose of the transfer is to
enable the transferor to impede the assessment or collection of tax. A
"Disqualified Organization" is either (a) the United States, a State, or
any agency or instrumentality of any of the foregoing (other than an
instrumentality that is a corporation if all of its activities are subject
to tax and a majority of its board of directors is not selected by any
such governmental unit), (b) a foreign government, International
Organization or agency or instrumentality of either of the foregoing, (c)
an organization that is exempt from tax imposed by Chapter 1 of the Code
(including the tax imposed by Code Section 511 on unrelated business
taxable income) on any excess inclusions (as defined in Code Section
860E(c)(1)) with respect to the REMIC Residual Certificates (except
certain farmers' cooperatives described in Code Section 521), (d) rural
electric and telephone cooperatives described in Code Section 1381(a)(2)
or (e) any other person so designated by the Trustee based upon an opinion
of counsel to the effect that any transfer to such person may cause any
REMIC to fail to qualify as a REMIC at any time that the Certificates are
outstanding. The terms "United States", "State" and "International
Organization" shall have the meanings set forth in Code Section 7701 or
successor provisions.
(4) The Transferee is aware of the tax imposed on a "pass-through
entity" holding the REMIC Residual Certificate if at any time during the
taxable year of the pass-through entity a "disqualified organization" is
the record holder of an interest in such entity. (For this purpose, a
"pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or
estate, and certain cooperatives.)
(5) The Transferee is aware that the Certificate Registrar will not
register any transfer of the REMIC Residual Certificate by the Transferee
unless the Transferee's transferee, or such transferee's agent, delivers
to the Certificate Registrar, among other things, an affidavit and
agreement in substantially the same form as this affidavit and agreement.
The Transferee expressly agrees that it will not consummate any such
transfer if it knows or believes that any representation contained in such
affidavit and agreement is false.
(6) The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to
constitute a reasonable arrangement to ensure that the REMIC Residual
Certificate will only be owned, directly or indirectly, by a Permitted
Transferee.
(7) The Transferee's taxpayer identification number is
______________.
(8) The Transferee has reviewed the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement, a description of which provisions is
set forth in the REMIC Residual Certificate (in particular, clause (ii) of
Section 5.02(d) which authorizes the Trustee to deliver payments on the
REMIC Residual Certificate to a person other than the Transferee, in the
event that the Transferee holds such REMIC Residual Certificate in
violation of Section 5.02(d)), and the Transferee expressly agrees to be
bound by and to comply with such provisions.
(9) No purpose of the Transferee relating to its purchase or any
sale of the REMIC Residual Certificate is or will be to impede the
assessment or collection of any tax.
(10) The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with
holding the REMIC Residual Certificate as they become due, fully
understanding that it may incur tax liabilities in excess of any cash
flows generated by the REMIC Residual Certificate.
(11) The Transferee will, in connection with any transfer that it
makes of the REMIC Residual Certificate, deliver to the Certificate
Registrar a representation letter substantially in the form of Exhibit C-2
to the Pooling and Servicing Agreement in which it will represent and
warrant, among other things, that it is not transferring the REMIC
Residual Certificate to impede the assessment or collection of any tax and
that it has at the time of such transfer conducted a reasonable
investigation of the financial condition of the proposed transferee as
contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and has
satisfied the requirements of such provision.
(12) The Transferee will not cause income to be attributable to a
foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of the Transferee or any other United States
person.
(13) Check the applicable box:
|_| The present value of the anticipated tax liabilities associated
with holding the REMIC Residual Certificate does not exceed the sum of:
(i) the present value of any consideration given to the
Transferee to acquire such REMIC Residual Certificate;
(ii) the present value of the expected future distributions on
such REMIC Residual Certificate; and
(iii) the present value of the anticipated tax savings
associated with holding such REMIC Residual Certificate as the
related REMIC generates losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
|_| The transfer of the REMIC Residual Certificate complies with
U.S. Treasury Regulations Sections 1.860G-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to which
income from the REMIC Residual Certificate will only be taxed in the
United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer,
the Transferee had gross assets for financial reporting purposes
(excluding any obligation of a person related to the Transferee
within the meaning of U.S. Treasury Regulations Section
1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in
excess of $10 million;
(iii) the Transferee will transfer the REMIC Residual
Certificate only to another "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), in a
transaction that satisfies the requirements of U.S. Treasury
Regulations Sections 1.860G-1(c)(4)(i), (ii) and (iii) and
1.860E-1(c)(5); and
(iv) the Transferee determined the consideration paid to it to
acquire the REMIC Residual Certificate based on reasonable market
assumptions (including, but not limited to, borrowing and investment
rates, prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Transferee)
that it has determined in good faith.
|_| None of the above.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Title of Officer] and its corporate seal to be hereunto attached, attested
by its [Assistant] Secretary, this ___ day of __________, 20__.
[NAME OF TRANSFEREE]
By:____________________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
______________________________
[Assistant] Secretary
Personally appeared before me the above named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Transferee, and acknowledged
to me that he/she executed the same as his/her free act and deed and the free
act and deed of the Transferee
Subscribed and sworn before me this ___ day of ______________, 20__.
____________________________________________
NOTARY PUBLIC
COUNTY OF ___________
STATE OF _____________
My Commission expires the _________
day of _____________, 20__.
EXHIBIT C-2
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(d)(i)(D)
__________________, 20___
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS) - Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-3
Re: Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-3, Class R-[I] [II],
evidencing a __% percentage interest in the Class to which it
belongs
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________ (the "Transferor") to ____________________ (the "Transferee") of
the captioned Class R-[I] [II] Certificate (the "REMIC Residual Certificate"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of July 1, 2007, by and among Banc of
America Commercial Mortgage Inc., as Depositor, Bank of America, National
Association, as Master Servicer, Midland Loan Services, Inc., as Special
Servicer, and Xxxxx Fargo Bank, N.A., as Trustee and REMIC Administrator. All
terms used herein and not otherwise defined shall have the respective meanings
set forth in the Pooling and Servicing Agreement. The Transferor hereby
represents and warrants to you, as Certificate Registrar, that:
(1) No purpose of the Transferor relating to the transfer of the
REMIC Residual Certificate by the Transferor to the Transferee is or will
be to impede the assessment or collection of any tax.
(2) The Transferor understands that the Transferee has delivered to
you a Transfer Affidavit and Agreement in the form attached to the Pooling
and Servicing Agreement as Exhibit C-1. The Transferor does not know or
believe that any representation contained therein is false.
(3) The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a
result of that investigation, the Transferor has determined that the
Transferee has historically paid its debts as they became due and has
found no significant evidence to indicate that the Transferee will not
continue to pay its debts as they become due in the future. The Transferor
understands that the transfer of the REMIC Residual Certificate may not be
respected for United States federal income tax purposes (and the
Transferor may continue to be liable for United States federal income
taxes associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
____________________________________________
(Transferor)
By:_________________________________________
Name:
Title:
EXHIBIT D
REQUEST FOR RELEASE
____________________, 20___
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS) - Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-3
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under that certain Pooling and Servicing
Agreement dated as of July 1, 2007 (the "Pooling and Servicing Agreement"), by
and among Banc of America Commercial Mortgage Inc., as Depositor, Bank of
America, National Association, as Master Servicer, Midland Loan Services, Inc.,
as Special Servicer, and Xxxxx Fargo Bank, N.A., as Trustee and REMIC
Administrator, the undersigned hereby requests a release of the Mortgage File
(or the portion thereof specified below) held by or on behalf of you as Trustee
with respect to the following described Mortgage Loan for the reason indicated
below.
Property Name:_____________________________________
Address:___________________________________________
Prospectus No.:____________________________________
If only particular documents in the Mortgage File are requested, please specify
which:________________________________________________________________________
Reason for requesting file (or portion thereof):
______ (1) Mortgage Loan paid in full. The undersigned hereby
certifies that all amounts received in connection with the Mortgage Loan that
are required to be credited to the Certificate Account pursuant to the Pooling
and Servicing Agreement, have been or will be so credited.
______ (2) The Mortgage Loan is being foreclosed.
______ (3) Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
BANK OF AMERICA, NATIONAL ASSOCIATION
By:____________________________________
Name:
Title:
Phone:
MIDLAND LOAN SERVICES, INC.
By:____________________________________
Name:
Title:
Phone:
Please deliver the Mortgage File as follows:
___________________________________
___________________________________
___________________________________
Attention: ________________________
Phone: ____________________________
EXHIBIT E
FORM OF ERISA REPRESENTATION LETTER
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS) - Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 0000-0
Xxxx xx Xxxxxxx Commercial Mortgage Inc.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-3
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-3, Class __ (the
"Certificate") issued pursuant to that Pooling and Servicing Agreement, dated as
of July 1, 2007 (the "Pooling and Servicing Agreement"), by and among Banc of
America Commercial Mortgage Inc., as Depositor, Bank of America, National
Association, as Master Servicer, Midland Loan Services, Inc., as Special
Servicer, and Xxxxx Fargo Bank, N.A., as Trustee and REMIC Administrator.
Capitalized terms used and not otherwise defined herein have the respective
meanings ascribed to such terms in the Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
(1) The Purchaser either is not (a) an employee benefit plan subject
to the fiduciary responsibility provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") or a plan subject to
Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code"), or a governmental plan (as defined in Section 3(32) of ERISA)
subject to any federal, state or local law ("Similar Law") which is, to a
material extent, similar to the foregoing provisions of ERISA or the Code
(each a "Plan") or (b) a person acting on behalf of or using the assets of
any such Plan (including an entity whose underlying assets include Plan
assets by reason of investment in the entity by any such Plan and the
application of Department of Labor Regulation ss. 2510.3-101), other than
(except with respect to the REMIC Residual Certificates) an insurance
company using the assets of its general account under circumstances
whereby the purchase and holding of Offered Private Certificates by such
insurance company would be exempt from the prohibited transaction
provisions of ERISA and the Code under both Sections I and III of
Prohibited Transaction Class Exemption 95-60, or (except with respect to
the REMIC Residual Certificates) will deliver the opinion contemplated by
3 below.
(2) Except for the REMIC Residual Certificates (which may not
transferred unless the Purchaser can make the representation described in
1 above), the Purchaser is purchasing Certificates, which at the time of
purchase are rated "BBB-" or better by at least one of Fitch, Inc.,
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., Xxxxx'x Investors Service, Inc., DBRS Limited or DBRS,
Inc. and the Purchaser (a) is purchasing the Certificates pursuant to
Prohibited Transaction Exemption 93-31 as amended by Prohibited
Transaction Exemption 2007-05 and (b) is an "accredited investor" as
defined in Rule 501(a)(1) of Regulation D of the Securities and Exchange
Commission under the Securities Act of 1933, as amended. If the Purchaser
is purchasing the Class A-2FL or Class A-MFL Certificates, acquisition and
holding of the Class A-2FL or Class A-MFL Certificates, as applicable, are
eligible for the exemptive relief available under at least one of the
Prohibited Transaction Class Exemption ("PTCE") 00-00, XXXX 00-0, XXXX
91-38, XXXX 00-00, XXXX 96-23 or a similar exemption under Similar Law.
(3) Except for the REMIC Residual Certificates (which may not
transferred unless the Purchaser can make the representation described in
1 above), the Purchaser understands that if the Purchaser is a Person
referred to in 1(a) or (b) above and cannot make the representation in 2
above, such Purchaser is required to provide to the Certificate Registrar
an opinion of counsel in form and substance satisfactory to the
Certificate Registrar and the Depositor to the effect that the acquisition
and holding of such Certificate by such purchaser or transferee will not
constitute or result in a non-exempt "prohibited transaction" within the
meaning of ERISA, Section 4975 of the Code or any Similar Law, and will
not subject the Trustee, the Certificate Registrar, the Master Servicer,
the Special Servicer, the Placement Agent or the Depositor to any
obligation or liability (including obligations or liabilities under ERISA,
Section 4975 of the Code or any such Similar Law) in addition to those set
forth in the Pooling and Servicing Agreement, which Opinion of Counsel
will not be at the expense of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Placement Agent, the Certificate
Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___th day of _____, ____.
Very truly yours,
______________________________________________
[The Purchaser]
By:__________________________________________
Name:
Title:
EXHIBIT F
FORM OF CUSTODIAL CERTIFICATION
[Date]
Banc of America Commercial Mortgage Inc.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Re: Pooling and Servicing Agreement dated as of July 1, 2007 (the
"Agreement") by and among Banc of America Commercial Mortgage Inc.,
as Depositor, Bank of America, National Association, as Master
Servicer, Midland Loan Services, Inc., as Special Servicer, and
Xxxxx Fargo Bank, N.A., as Trustee and REMIC Administrator, for the
Certificateholders of the Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-3
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the above referenced Agreement, the
Trustee hereby certifies as to each Mortgage Loan listed on the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full), and except as specifically
identified in the exception report annexed hereto, (i) all documents specified
in the definition of "Mortgage File" are in its possession or the possession of
a Custodian on its behalf, or each Mortgage Loan Seller has otherwise satisfied
the delivery requirements in respect of such documents in accordance with
Section 2.01(b) and (ii) all documents received by it or any Custodian in
respect of such Mortgage Loan have been reviewed by it or by a Custodian on its
behalf and appear regular on their face, appear to be executed, and relate to
such Mortgage Loan.
None of the Trustee, the Master Servicer, the Special Servicer or
any Custodian is under any duty or obligation (i) to determine whether any of
the documents specified in clauses (iii), (v), (vi) and (viii) through (xii) of
the definition of "Mortgage File" exist or are required to be delivered by the
Mortgage Loan Seller in respect of any Mortgage Loan, or (ii) to inspect, review
or examine any of the documents, instruments, certificates or other papers
relating to the Mortgage Loans delivered to it to determine that the same are
valid, legal, effective, genuine, binding, enforceable, sufficient or
appropriate for the represented purpose or that they are other than what they
purport to be on their face. Notwithstanding the foregoing, with respect to
Letters of Credit referenced in clause (xii) of the definition of "Mortgage
File" the Trustee shall perform the review set forth in Section
2.02(b)(iii)(A)-(C) of the Agreement. Furthermore, except as expressly provided
in Section 2.02(b) of the Agreement, none of the Trustee, the Master Servicer,
the Special Servicer or any Custodian shall have any responsibility for
determining whether the text of any assignment or endorsement is in proper or
recordable form, whether the requisite recording of any document is in
accordance with the requirements of any applicable jurisdiction, or whether a
blanket assignment is permitted in any applicable jurisdiction.
Any terms used herein and not defined shall have the respective
meaning assigned to them in the Agreement.
Respectfully,
____________________________________
[Name]:
[Title]:
cc: Xxxx X. Xxxxxxx, Esq., Assistant General Counsel, Bank of America
Corporation
EXHIBIT G
FORM OF TRUSTEE DISTRIBUTION DATE STATEMENT
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
DISTRIBUTION DATE STATEMENT
Table of Contents
-------------------------------------------------------------------------------
STATEMENT SECTIONS PAGE(s)
------------------ -------
Certificate Distribution Detail 2
Certificate Factor Detail 3
Reconciliation Detail 4
Other Required Information 5
Cash Reconciliation Detail 6
Ratings Detail 8
Current Mortgage Loan and Property Stratification Tables 8 - 16
Mortgage Loan Detail 17
NOI Detail 18
Principal Prepayment Detail 19
Historical Detail 20
Delinquency Loan Detail 21
Specially Serviced Loan Detail 22 - 23
Advance Summary 24
Modified Loan Detail 25
Historical Liquidated Loan Detail 26
Historical Bond / Collateral Realized Loss Reconciliation 27
Interest Shortfall Reconciliation Detail 28 - 29
Defeased Loan Detail 30
Supplemental Reporting 31
-------------------------------------------------------------------------------
Depositor Master Servicer Special Servicer
-------------------------------------- ------------------------------------------- --------------------------------------
Banc of America Commercial Bank of America, N.A. Midland Loan Services, L.P.
Mortgage Inc. 000 Xxxx Xxxxx Xxxxxx 00000 Xxxxxx
000 Xxxxx Xxxxx Xxxxxx Xxxxx 000 Xxxxxxxx Xxxx, XX 00000
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Contact: Xxxxxxx Xxxxx Contact: Xxxxxxx Xxxxx Contact: Xxxx Xxxxxx
Phone Number: (000) 000-0000 Phone Number: (000) 000-0000 Phone Number: (000) 000-0000
-------------------------------------- ------------------------------------------- --------------------------------------
This report has been compiled from information provided to Xxxxx Fargo Bank, N.A. by various third parties, which may include the
Master Servicer, Special Servicer and others. Xxxxx Fargo Bank, N.A. has not independently confirmed the accuracy of information
received from these third parties and assumes no duty to do so. Xxxxx Fargo Bank, N.A. expressly disclaims any responsibility for
the accuracy or completeness of information furnished by third parties.
-----------------------------------------------------------------------------------------------------------------------------------
Page 1 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Certificate Distribution Detail
-----------------------------------------------------------------------------------------------------------------------------------
Realized Loss/ Current
Pass-Through Original Beginning Principal Interest Prepayment Additional Trust Total Ending Subordination
Class CUSIP Rate Balance Balance Distribution Distribution Premium Fund Expenses Distribution Balance Level(1)
-----------------------------------------------------------------------------------------------------------------------------------
A-1 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2FL 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-AB 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-5 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1A 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-M 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-MFL 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-J 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
E 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
F 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
G 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
H 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
J 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
K 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
L 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
M 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
N 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
O 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
P 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Q 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
S 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
R-I 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
R-II 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Original Beginning Ending
Pass-Through Notional Notional Interest Prepayment Total Notional
Class CUSIP Rate Amount Amount Distribution Premium Distribution Amount
----------------------------------------------------------------------------------------------
XW 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00
----------------------------------------------------------------------------------------------
(1) Calculated by taking (A) the sum of the ending certificate balance of all classes less (B) the sum of (i) the ending
balance of the designated class and (ii) the ending certificate balance of all classes which are not subordinate
to the designated class and deviding the result by (A).
-----------------------------------------------------------------------------------------------------------------------------------
Page 2 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Certificate Factor Detail
--------------------------------------------------------------------------------------------------------------
Realized Loss/
Beginning Principal Interest Prepayment Additional Trust Ending
Class CUSIP Balance Distribution Distribution Premium Fund Expenses Balance
--------------------------------------------------------------------------------------------------------------
A-1 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-2 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-2FL 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-3 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-AB 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-4 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-5 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-1A 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-M 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-MFL 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-J 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
C 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
D 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
E 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
F 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
G 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
H 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
J 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
K 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
L 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
M 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
N 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
O 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
P 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
Q 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
S 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R-I 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R-II 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
--------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------
Beginning Ending
Notional Interest Prepayment Notional
Class CUSIP Amount Distribution Premium Amount
---------------------------------------------------------------------------
XW 0.00000000 0.00000000 0.00000000 0.00000000
---------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 3 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Reconciliation Detail
Principal Reconciliation
---------------------------------------------------------------------------------------------------
Stated Beginning Principal Unpaid Beginning Scheduled Unscheduled Principal
Loan Group Balance Principal Balance Principal Principal Adjustments
---------- -------------------------- ----------------- --------- ----------- -----------
1 0.00 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00 0.00
---------- -------------------------- ----------------- --------- ----------- -----------
Total 0.00 0.00 0.00 0.00 0.00
Realized Stated Ending Unpaid Ending Current Principal
Loan Group Loss Principal Balance Principal Balance Distribution Amount
---------- -------- ----------------- ----------------- -------------------
1 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00
---------- -------- ----------------- ----------------- -------------------
Total 0.00 0.00 0.00 0.00
Certificate Interest Reconciliation
---------------------------------------------------------------------------------------------
Accrued Net Aggregate Distributable Distributable
Accrual Accrual Certificate Prepayment Certificate Certificate Interest
Class Dates Days Interest Interest Shortfall Interest Adjustment
---------------------------------------------------------------------------------------------
A-1 0 0 0.00 0.00 0.00 0.00
A-2 0 0 0.00 0.00 0.00 0.00
A-2FL 0 0 0.00 0.00 0.00 0.00
A-3 0 0 0.00 0.00 0.00 0.00
A-AB 0 0 0.00 0.00 0.00 0.00
A-4 0 0 0.00 0.00 0.00 0.00
A-5 0 0 0.00 0.00 0.00 0.00
A-1A 0 0 0.00 0.00 0.00 0.00
XW 0 0 0.00 0.00 0.00 0.00
A-M 0 0 0.00 0.00 0.00 0.00
A-MFL 0 0 0.00 0.00 0.00 0.00
A-J 0 0 0.00 0.00 0.00 0.00
B 0 0 0.00 0.00 0.00 0.00
C 0 0 0.00 0.00 0.00 0.00
D 0 0 0.00 0.00 0.00 0.00
E 0 0 0.00 0.00 0.00 0.00
F 0 0 0.00 0.00 0.00 0.00
G 0 0 0.00 0.00 0.00 0.00
H 0 0 0.00 0.00 0.00 0.00
J 0 0 0.00 0.00 0.00 0.00
K 0 0 0.00 0.00 0.00 0.00
L 0 0 0.00 0.00 0.00 0.00
M 0 0 0.00 0.00 0.00 0.00
N 0 0 0.00 0.00 0.00 0.00
O 0 0 0.00 0.00 0.00 0.00
P 0 0 0.00 0.00 0.00 0.00
Q 0 0 0.00 0.00 0.00 0.00
S 0 0 0.00 0.00 0.00 0.00
---------------------------------------------------------------------------------------------
Totals 0 0.00 0.00 0.00 0.00
---------------------------------------------------------------------------------------------
Certificate Interest Reconciliation
-----------------------------------------------------------------
Additional Remaining Unpaid
WAC CAP Trust Fund Interest Distributable
Class Shortfall Expenses Distribution Certificate Interest
-----------------------------------------------------------------
A-1 0.00 0.00 0.00 0.00
A-2 0.00 0.00 0.00 0.00
A-2FL 0.00 0.00 0.00 0.00
A-3 0.00 0.00 0.00 0.00
A-AB 0.00 0.00 0.00 0.00
A-4 0.00 0.00 0.00 0.00
A-5 0.00 0.00 0.00 0.00
A-1A 0.00 0.00 0.00 0.00
A-M 0.00 0.00 0.00 0.00
XW 0.00 0.00 0.00 0.00
A-MFL 0.00 0.00 0.00 0.00
A-J 0.00 0.00 0.00 0.00
B 0.00 0.00 0.00 0.00
C 0.00 0.00 0.00 0.00
D 0.00 0.00 0.00 0.00
E 0.00 0.00 0.00 0.00
F 0.00 0.00 0.00 0.00
G 0.00 0.00 0.00 0.00
H 0.00 0.00 0.00 0.00
J 0.00 0.00 0.00 0.00
K 0.00 0.00 0.00 0.00
L 0.00 0.00 0.00 0.00
M 0.00 0.00 0.00 0.00
N 0.00 0.00 0.00 0.00
O 0.00 0.00 0.00 0.00
P 0.00 0.00 0.00 0.00
Q 0.00 0.00 0.00 0.00
S 0.00 0.00 0.00 0.00
-----------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00
-----------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 4 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Other Required Information
--------------------------------------------------------------------------------
Available Distribution Amount (1) 0.00
Master Servicing Fee Summary
Current Period Accrued Master Servicing Fees 0.00
Less Delinquent Master Servicing Fees 0.00
Less Reductions to Master Servcing Fees 0.00
Plus Master Servicing Fees for Delinquent Payments Received 0.00
Plus Adjustments for Prior Master Servicing Calculation 0.00
Total Master Servicing Fees Collected 0.00
(1) The Available Distribution Amount includes any Prepayment Premiums.
Appraisal Reduction Amount
-------------------------------------------------
Appraisal Cumulative Most Recent
Loan Reduction ASER App. Red.
Number Effected Amount Date
-------------------------------------------------
-------------------------------------------------
Total
-------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 5 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Cash Reconciliation Detail
---------------------------------------------------------------------------------------------------------------------------------
Total Funds Collected
Interest:
Interest paid or advanced 0.00
Interest reductions due to Non-Recoverability Determinations 0.00
Interest Adjustments 0.00
Deferred Interest 0.00
Net Prepayment Interest Shortfall 0.00
Net Prepayment Interest Excess 0.00
Extension Interest 0.00
Interest Reserve Withdrawal 0.00
--------------
Total Interest Collected 0.00
Principal:
Scheduled Principal 0.00
Unscheduled Principal 0.00
Principal Prepayments 0.00
Collection of Principal after Maturity Date 0.00
Recoveries from Liquidation and Insurance Proceeds 0.00
Excess of Prior Principal Amounts paid 0.00
Curtailments 0.00
Negative Amortization 0.00
Principal Adjustments 0.00
--------------
Total Principal Collected 0.00
Other:
Prepayment Penalties/Yield Maintenance 0.00
Repayment Fees 0.00
Borrower Option Extension Fees 0.00
Equity Payments Received 0.00
Net Swap Counterparty Payments Received 0.00
--------------
Total Other Collected 0.00
--------------
Total Funds Collected 0.00
==============
Total Funds Distributed
Fees:
Master Servicing Fee 0.00
Trustee Fee 0.00
Certificate Administration Fee 0.00
Insurer Fee 0.00
Miscellaneous Fee 0.00
--------------
Total Fees 0.00
Additional Trust Fund Expenses:
Reimbursement for Interest on Advances 0.00
ASER Amount 0.00
Special Servicing Fee 0.00
Rating Agency Expenses 0.00
Attorney Fees & Expenses 0.00
Bankruptcy Expense 0.00
Taxes Imposed on Trust Fund 0.00
Non-Recoverable Advances 0.00
Other Expenses 0.00
--------------
Total Additional Trust Fund Expenses 0.00
Interest Reserve Deposit 0.00
Payments to Certificateholders & Others:
Interest Distribution 0.00
Principal Distribution 0.00
Prepayment Penalties/Yield Maintenance 0.00
Borrower Option Extension Fees 0.00
Equity Payments Paid 0.00
Net Swap Counterparty Payments Paid 0.00
--------------
Total Payments to Certificateholders & Others 0.00
--------------
Total Funds Distributed 0.00
==============
-----------------------------------------------------------------------------------------------------------------------------------
Page 6 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Ratings Detail
---------------------------------------------------------------------------------------------------------------
Original Ratings Current Ratings (1)
------------------------------------------------------------------------------
Class CUSIP Fitch Xxxxx'x S & P Fitch Xxxxx'x S & P
---------------------------------------------------------------------------------------------------------------
X-0
X-0
X-0XX
X-0
X-XX
A-4
A-5
A-1A
A-M
A-MFL
X-X
X
X
X
X
X
X
X
X
K
L
M
N
O
P
Q
S
---------------------------------------------------------------------------------------------------------------
NR - Designates that the class was not rated by the above agency at the time of original issuance.
X - Designates that the above rating agency did not rate any classes in this transaction at the time of original issuance.
N/A - Data not available this period.
1) For any class not rated at the time of original issuance by any particular rating agency, no request has been made
subsequent to issuance to obtain rating information, if any, from such rating agency. The current ratings were obtained
directly from the applicable rating agency within 30 days of the payment date listed above. The ratings may have changed since
they were obtained. Because the ratings may have changed, you may want to obtain current ratings directly from the rating
agencies.
Fitch, Inc. Xxxxx'x Investors Service Standard & Poor's Rating Services
Xxx Xxxxx Xxxxxx Xxxxx 00 Xxxxxx Xxxxxx 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (000) 000-0000 (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------------------
Page 7 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR (1) State Props Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Page 8 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio Loans Balance Bal. (2) Avg DSCR (1) Type Props Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate Loans Balance Bal. (2) Avg DSCR (1) Seasoning Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Page 9 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) Loans Balance Bal. (2) Avg DSCR (1) Term Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Recent NOI
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of % of
Amortization # of Scheduled Agg. WAM WAC Weighted Age of Most # of Scheduled Agg. WAM WAC Weighted
Term Loans Balance Bal. (2) Avg DSCR (1) Recent NOI Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset level. In
all cases, the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the Servicer,
information from the offering document is used. The Trustee makes no representations as to the accuracy of the data provided by
the borrower for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the
Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the Cut-off
Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Page 10 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR (1) State Props Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Page 11 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio Loans Balance Bal. (2) Avg DSCR (1) Type Props Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate Loans Balance Bal. (2) Avg DSCR (1) Seasoning Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Page 12 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) Loans Balance Bal. (2) Avg DSCR (1) Term Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Recent NOI
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of % of
Amortization # of Scheduled Agg. WAM WAC Weighted Age of Most # of Scheduled Agg. WAM WAC Weighted
Term Loans Balance Bal. (2) Avg DSCR (1) Recent NOI Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset
level. In all cases, the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the
Servicer, information from the offering document is used. The Trustee makes no representations as to the accuracy of the
data provided by the borrower for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of
the Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon
the Cut-off Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Page 13 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR (1) State Props Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Page 14 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio Loans Balance Bal. (2) Avg DSCR (1) Type Props Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate Loans Balance Bal. (2) Avg DSCR (1) Seasoning Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Page 15 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) Loans Balance Bal. (2) Avg DSCR (1) Term Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Recent NOI
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of % of
Amortization # of Scheduled Agg. WAM WAC Weighted Age of Most # of Scheduled Agg. WAM WAC Weighted
Term Loans Balance Bal. (2) Avg DSCR (1) Recent NOI Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset
level. In all cases, the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the
Servicer, information from the offering document is used. The Paying Agent makes no representations as to the accuracy of
the data provided by for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the
Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the
Cut-off Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Page 16 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Mortgage Loan Detail
---------------------------------------------------------------------------------------------------------------------------
Anticipated Neg. Beginning Ending Paid
Loan Property Interest Principal Gross Repayment Maturity Amort Scheduled Scheduled Thru
Number ODCR Type (1) City State Payment Payment Coupon Date Date (Y/N) Balance Balance Date
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Totals
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------
Appraisal Appraisal Res. Mod.
Loan Reduction Reduction Strat. Code
Number Date Amount (2) (3)
---------------------------------------------
---------------------------------------------
Totals
---------------------------------------------
--------------------------------------------------------------------------------
(1) Property Type Code
----------------------
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
(2) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
(3) Modification Code
---------------------
1 - Maturity Date Extension
2 - Amortization Change
3 - Principal Write-Off
4 - Combination
--------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 17 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
NOI Detail
-----------------------------------------------------------------------------------------------------------------------------------
Ending Most Most Most Recent Most Recent
Loan Property Scheduled Recent Recent NOI Start NOI End
Number ODCR Type City State Balance Fiscal NOI NOI Date Date
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 18 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Principal Prepayment Detail
--------------------------------------------------------------------------------------------------------
Principal Prepayment Amount
Offering Document --------------------------------------
Loan Number Loan Group Cross-Reference Payoff Amount Curtailment Amount
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------
--------------------------------------------------------------------
Prepayment Penalties
--------------------------------------------------
Loan Number Prepayment Premium Yield Maintenance Premium
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
--------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 19 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Historical Detail
------------------------------------------------------------------------------------------------------------------------------------
Delinquencies
-------------------------------------------------------------------------------------------------
Distribution 30-59 Days 60-89 Days 90 Days or More Foreclosure REO Modifications
Date # Balance # Balance # Balance # Balance # Balance # Balance
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
Prepayments Rate and Maturities
--------------------------------------------------------------------------------------
Distribution Curtailments Payoff Next Weighted Avg.
Date # Balance # Balance Coupon Remit WAM
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
Note: Foreclosure and REO Totals are excluded from the delinquencies.
-----------------------------------------------------------------------------------------------------------------------------------
Page 20 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Delinquency Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Offering # of Current Outstanding Status of Resolution
Document Months Paid Through P & I P & I Mortgage Strategy Servicing Foreclosure
Loan Number Cross-Reference Delinq. Date Advances Advances ** Loan (1) Code (2) Transfer Date Date
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------
Actual Outstanding
Principal Servicing Bankruptcy REO
Loan Number Balance Advances Date Date
--------------------------------------------------------------
--------------------------------------------------------------
Totals
--------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
(1) Status of Mortgage Loan
---------------------------
A - Payment Not Received 0 - Current 4 - Assumed Scheduled Payment
But Still in Grace Period 1 - One Month Delinquent (Performing Matured Loan)
B - Late Payment But Less 2 - Two Months Delinquent 7 - Foreclosure
Than 1 Month Delinquent 3 - Three or More Months Delinquent 9 - REO
(2) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed In Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
-------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 21 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Specially Serviced Loan Detail - Part 1
---------------------------------------------------------------------------------------------------------------------
Offering Servicing Resolution
Distribution Loan Document Transfer Strategy Scheduled Property Interest Actual
Date Number Cross-Reference Date Code (1) Balance Type (2) State Rate Balance
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------
Net Remaining
Distribution Operating NOI Note Maturity Amortization
Date Income Date DSCR Date Date Term
----------------------------------------------------------------------------
----------------------------------------------------------------------------
(1) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
(2) Property Type Code
----------------------
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
-----------------------------------------------------------------------------------------------------------------------------------
Page 22 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Specially Serviced Loan Detail - Part 2
------------------------------------------------------------------------------------------------------------------------------------
Offering Resolution Site
Distribution Loan Document Strategy Inspection Appraisal Appraisal Other REO
Date Number Cross-Reference Code (1) Date Phase 1 Date Date Value Property Revenue Comment
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
(1) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
-----------------------------------------------------------------------------------------------------------------------------------
Page 23 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Advance Summary
Current Period Interest
Current P&I Outstanding P&I Outstanding Servicing on P&I and Servicing
Loan Group Advances Advances Advances Advances Paid
---------- ----------- --------------- --------------------- -----------------------
1 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00
---------- ----------- --------------- --------------------- -----------------------
Totals 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
Page 24 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Modified Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Offering
Loan Document Pre-Modification Post-Modification Pre-Modification Post-Modification Modification
Number Cross-Reference Balance Balance Interest Rate Interest Rate Date
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Loan Modification
Number Description
------------------------
------------------------
Totals
------------------------
------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 25 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Historical Liquidated Loan Detail
--------------------------------------------------------------------------------------------------------------------
Beginning Fees, Most Recent Gross Sales Net Proceeds
Distribution Scheduled Advances, Appraised Proceeds or Received on
Date ODCR Balance and Expenses* Value or BPO Other Proceeds Liquidation
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
Current Total
--------------------------------------------------------------------------------------------------------------------
Cumulative Total
--------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Net Proceeds Date of Current Current Period Cumulative Loss to Loan
Distribution Available for Realized Period Adj. Adjustment Adjustment with Cum
Date Distribution Loss to Trust to Trust to Trust to Trust Adj. to Trust
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Current Total
---------------------------------------------------------------------------------------------------------------------------------
Cumulative Total
---------------------------------------------------------------------------------------------------------------------------------
* Fees, Advances and Expenses also include outstanding P & I advances and unpaid fees (servicing, trustee, etc.).
-----------------------------------------------------------------------------------------------------------------------------------
Page 26 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Historical Bond/Collateral Reallized Loss Reconciliation Detail
Offering Beginning Aggregate Prior Realized Amounts Interest Modification
Distribution Document Balance Realized Loss Loss Applied Covered By (Shortages)/ /Appraisal
Date Cross-Reference at Liquidation on Loans to Certificates Credit Support Excesses Reduction Adj.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
Additional Realized Loss Recoveries of (Recoveries)/
Distribution (Recoveries) Applied to Realized Losses Losses Applied to
Date /Expenses Certificates to Date Paid as Cash Certificate Interest
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
Totals
-------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Page 27 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail - Part 1
Offering Stated Principal Current Ending Special Servicing Fees Non-Recoverable
Document Balance at Scheduled -------------------------------- (Scheduled
Cross-Reference Contribution Balance Monthly Liquidation Work Out ASER (PPIS) Excess Interest)
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Totals
----------------------------------------------------------------------------------------------------------------------------------
Offering Modified Interest Additional
Document Interest on Rate (Reduction) Trust Fund
Cross-Reference Advances /Excess Expense
--------------------------------------------------------------
--------------------------------------------------------------
Totals
--------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Page 28 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail - Part 2
Reimb of Advances to the Servicer
Offering Stated Principal Current Ending ---------------------------------
Document Balance at Scheduled Left to Reimburse Other (Shortfalls)/
Cross-Reference Contribution Balance Current Month Master Servicer Refunds Comments
------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail Part 2 Total 0.00
------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail Part 1 Total 0.00
------------------------------------------------------------------------------------------------------------------------
Total Interest Shortfall Allocated to Trust 0.00
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Page 29 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Defeased Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Offering Document Ending Scheduled
Loan Number Cross-Reference Balance Maturity Date Note Rate Defeasance Status
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Page 30 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-3 | Reports Available @ xxx.xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 08/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 07/31/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 08/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Supplemental Reporting
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Page 31 of 31
EXHIBIT H
FORM OF REQUEST FOR REVIEW
__________________, 20_____
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS) - Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-3
Re: Pooling and Servicing Agreement dated as of July 1, 2007 (the
"Agreement") by and among Banc of America Commercial Mortgage Inc.,
as Depositor, Bank of America, National Association, as Master
Servicer, Midland Loan Services, Inc., as Special Servicer, and
Xxxxx Fargo Bank, N.A., as Trustee and REMIC Administrator, for the
Certificateholders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-3
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the above referenced Agreement,
[_________________] requests a review of the following Mortgage file:
Property Name: ________________________________________
Property Address: ________________________________________
Loan Number : ________________________________________
The results of such review should be returned to
[___________________] at the following address:
________________________________
________________________________
________________________________
Phone:__________________________
Fax:____________________________
EXHIBIT I
FORM OF NOTICE REGARDING PURCHASE OPTION EXERCISE
[Letterhead of Master Servicer]
[Date]
[Option Holder]
Re: Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-3
Ladies and Gentlemen:
You are the holder of an assignable option (the "Purchase Option")
to purchase Mortgage Loan number ____ from the Trust Fund, pursuant to Section
3.18 of the pooling and servicing agreement (the "Pooling and Servicing
Agreement") dated as of July 1, 2007, by and among Banc of America Commercial
Mortgage Inc., as Depositor, Bank of America, National Association, as Master
Servicer, Midland Loan Services, Inc., as Special Servicer, and Xxxxx Fargo
Bank, N.A., as Trustee and REMIC Administrator. Capitalized terms used herein
and not otherwise defined shall have the meaning set forth in the Pooling and
Servicing Agreement.
This notice is to inform you that the exercise of your Purchase
Option in respect of Mortgage Loan number ___, pursuant to your Purchase Option
Notice dated _________, a copy of which is attached hereto, is effective.
Pursuant to Section 3.18(d) of the Pooling and Servicing Agreement and your
Purchase Option Notice, closing of [your] [_________'s] acquisition of Mortgage
Loan number ___ shall occur within ten (10) Business Days of your receipt of
this notice, at the place and in the manner described below.
[Describe closing mechanics. Describe documents or instruments
required to be prepared by Option Holder in connection with assignment and
release of the related Mortgage Loan.]
Upon payment of the Option Price, Mortgage Loan number ___ and the
related Mortgaged Property will be released and the related Mortgage Loan File
will be delivered to [you] [__________] or at [your] [_________'s] direction.
Drafts of such instruments of transfer or assignment, in each case
without recourse, reasonably necessary to vest in [you] or [________] the
ownership of Mortgage Loan ____, together with [describe other documents or
instruments reasonably required to consummate the purchase] should be delivered
to [____________] for review as soon as is practicable.
[Provide Master Servicer contact information.]
Please acknowledge receipt of this letter by signing the enclosed
copy and return it to my attention.
Sincerely,
By:____________________________________
Name:
Title:
Option Holder's Acknowledgment
By:_______________________________
Name:
Title:
Date:
EXHIBIT J
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
For any loan that is not among ten (10) largest loans in pool, and that has an
outstanding balance less than both (a) $35,000,000 and (b) 5.0% of
outstanding pool balance
To: Standard & Poor's Ratings Services
a division of The McGraw Hill Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: Bank of America, National Association, in its capacity as Master Servicer
(the "Master Servicer") under the Pooling and Servicing Agreement dated as
of July 1, 2007 (the "Pooling and Servicing Agreement"), among the Master
Servicer, Midland Loan Services, Inc., as Special Servicer, and Xxxxx
Fargo Bank, N.A., as Trustee and REMIC Administrator.
Date: _________, 20___
Re: Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates
Series 2007-3
Mortgage Loan (the "Mortgage Loan") identified by loan number _____ on the
Mortgage Loan Schedule attached to the Pooling and Servicing Agreement and
heretofore secured by the Mortgaged Properties identified on the Mortgage
Loan Schedule by the following names:____________________
____________________
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement. [Note: all terms in this
Certification must be conformed to terms used in the Pooling and Servicing
Agreement]
As Master Servicer under the Pooling and Servicing Agreement, we
hereby:
(1) Notify you that the Mortgagor has consummated a defeasance of
the Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type
checked below:
______ a full defeasance of the entire principal balance of the
Mortgage Loan; or
______ a partial defeasance of a portion of the principal balance of
the Mortgage Loan that represents and, an allocated loan amount of $____________
or _______% of the entire principal balance of the Mortgage Loan;
(2) Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A hereto, which
exceptions the Master Servicer has determined, consistent with the
Servicing Standard, will have no material adverse effect on the Mortgage
Loan or the defeasance transaction:
(A) The Mortgage Loan Documents permit the defeasance, and the
terms and conditions for defeasance specified therein were satisfied
in all material respects in completing the defeasance.
(B) The defeasance was consummated on __________, 20__.
(C) The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section 2(a)(16) of
the Investment Company Act of 1940 as amended (15 U.S.C. 80A1), (ii)
are listed as "Qualified Investments for `AAA' Financings" under
Paragraphs 1, 2 or 3 of "Cash Flow Approach" in Standard & Poor's
Public Finance Criteria 2000, as amended to the date of the
defeasance, (iii) are rated "AAA" by Standard & Poor's, (iv) if they
include a principal obligation, the principal due at maturity cannot
vary or change, and (v) are not subject to prepayment, call or early
redemption.
(D) The Master Servicer received an opinion of counsel (from
counsel approved by the Master Servicer in accordance with the
Servicing Standard) that the defeasance will not result in an
Adverse REMIC event.
(E) The Master Servicer determined that the defeasance
collateral will be owned by an entity (the "Defeasance Obligor")
that is a Single-Purpose Entity (as defined in Standard & Poor's
Structured Finance Ratings Real Estate Finance Criteria, as amended
to the date of the defeasance (the "S&P Criteria")) as of the date
of the defeasance, and after the defeasance owns no assets other
than the defeasance collateral and real property securing Mortgage
Loans included in the pool.
(F) The Master Servicer received written confirmation of the
crediting of the defeasance collateral to an Eligible Account (as
defined in the S&P Criteria) in the name of the Defeasance Obligor,
which account is maintained as a securities account by a securities
intermediary and has been pledged to the Trustee.
(G) The agreements executed in connection with the defeasance
(i) grant control of the pledged securities account to the trustee,
(ii) require the securities intermediary to make the scheduled
payments on the Mortgage Loan from the proceeds of the defeasance
collateral directly to the Master Servicer's collection account in
the amounts and on the dates specified in the Mortgage Loan
Documents or, in a partial defeasance, the portion of such scheduled
payments attributed to the allocated loan amount for the real
property defeased, increased by any defeasance premium specified in
the Mortgage Loan Documents (the "Scheduled Payments"), (iii) permit
reinvestment of proceeds of the defeasance collateral only in
Permitted Investments (as defined in the S&P Criteria), (iv) permit
release of surplus defeasance collateral and earnings on
reinvestment from the pledged securities account only after the
Mortgage Loan has been paid in full, if any such release is
permitted, (v) prohibit transfers by the Defeasance Obligor of the
Defeasance Collateral and subordinate liens against the defeasance
collateral, and (vi) provide for payment from sources other than the
defeasance collateral or other assets of the Defeasance Obligor of
all fees and expenses of the securities intermediary for
administering the defeasance and the securities account and all fees
and expenses of maintaining the existence of the Defeasance Obligor.
(H) The Master Servicer received written confirmation from a
firm of independent certified public accountants, who were approved
by the Master Servicer in accordance with the Servicing Standard
stating that (i) revenues from the defeasance collateral (without
taking into account any earnings on reinvestment of such revenues)
will be sufficient to timely pay each of the Scheduled Payments
after the defeasance including the payment in full of the Mortgage
Loan (or the allocated portion thereof in connection with a partial
defeasance) on its Maturity Date, (ii) the revenues received in any
month from the defeasance collateral will be applied to make
Scheduled Payments within four (4) months after the date of receipt,
and (iii) interest income from the defeasance collateral to the
Defeasance Obligor in any calendar or fiscal year will not exceed
such Defeasance Obligor's interest expense for the Mortgage Loan (or
the allocated portion thereof in a partial defeasance) for such
year.
(I) The Mortgage Loan is not among the ten (10) largest loans
in the pool. The entire principal balance of the Mortgage Loan as of
the date of defeasance was less than both $35,000,000 and 5.0% of
pool balance, which is less than 5.0% of the aggregate Certificate
Balance of the Certificates as of the date of the most recent Paying
Agent's Monthly Certificateholder Report received by us (the
"Current Report").
(J) The defeasance described herein, together with all prior
and simultaneous defeasances of Mortgage Loans, brings the total of
all fully and partially defeased Mortgage Loans to
$__________________, which is _____% of the Aggregate Certificate
Balance of the Certificates as of the date of the Current Report.
(3) Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the Defeasance
Obligor, and opinions of counsel and independent accountants executed and
delivered in connection with the defeasance.
(4) Certify that the individual under whose hand the Master Servicer
has caused this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
(5) Agree to provide copies of all items listed in Exhibit B to you
upon request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
BANK OF AMERICA, NATIONAL ASSOCIATION
By:____________________________________
Name:
Title:
EXHIBIT K
FORM OF CERTIFICATION TO BE PROVIDED WITH FORM 00-X
Xxxx xx Xxxxxxx Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates,
Series 2007-3 (the "Trust")
I, [identify the certifying individual], certify that:
(1) I have reviewed this annual report on Form 10-K, and all reports
on Form 10-D required to be filed in respect of the period covered by this
report on Form 10-K (the "Exchange Act Periodic Reports"), of the Trust
formed pursuant to the Pooling and Servicing Agreement (the ("Pooling and
Servicing Agreement") dated as of July 1, 2007 among Banc of America
Commercial Mortgage Inc., as Depositor, Bank of America, National
Association, as Master Servicer, Midland Loan Services, Inc., as Special
Servicer, and Xxxxx Fargo Bank, N.A., as Trustee and REMIC Administrator;
(2) Based on my knowledge, the Exchange Act Periodic Reports, taken
as a whole, do not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in light
of the circumstances under which such statements were made, not misleading
as of the last day of the period covered by this annual report;
(3) Based on my knowledge, all of the distribution, servicing and
other information required to be provided under Form 10-D for the period
covered by this report is included in Exchange Act Periodic Reports;
(4) Based on my knowledge and the servicer compliance statements
required in this report under Item 1123 of Regulation AB, and except as
disclosed in the Exchange Act Periodic Report, the servicers have
fulfilled their obligations under the Pooling and Servicing Agreement in
all material respects;
(5) All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation reports
on assessment of compliance with servicing criteria for asset-backed
securities required to be included in this report in accordance with Item
1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been
included as an exhibit to this report, except as otherwise disclosed in
this report. Any material instances of noncompliance described in such
reports have been disclosed in this report on Form 10-K; and
(6) I have disclosed to the Trust's certified public accountants all
significant deficiencies relating to the Master Servicer's or Special
Servicer's compliance with the minimum servicing standards in accordance
with a review conducted in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or similar standard as set forth in the
Pooling and Servicing Agreement.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: ________, as
Special Servicer, ________, as Trustee and REMIC Administrator, ________, as
Sub-Servicer, ________, and as Sub-Servicer, ________.
Date: _________________________
_______________________________
[Signature]
[Title]
EXHIBIT L
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR
Re: Banc of America Commercial Mortgage Trust 2007-3 (the "Trust"),
Commercial Mortgage Pass-Through Certificates, Series 2007-3
I, [identify the certifying individual], a[n] [title] of [identify
name of company] on behalf of [identify name of company], as [Trustee/Master
Servicer/Special Servicer] under that certain Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement") dated as of July 1, 2007, among Banc of
America Commercial Mortgage Inc., as Depositor, Bank of America, National
Association, as Master Servicer, Midland Loan Services, Inc., as Special
Servicer, and Xxxxx Fargo Bank, N.A., as Trustee and REMIC Administrator,
certify to [identify the individual signing the Xxxxxxxx-Xxxxx Certification],
the Depositor and its partners, representatives, affiliates, members, managers,
directors, officers, employees and agents, to the extent that the following
information is within our normal area of responsibilities and duties under the
Pooling and Servicing Agreement, and with the knowledge and intent that they
will rely upon this certification, that:
(1) [To be certified by the Trustee] [I have reviewed the
information provided by the Master Servicer and Special Servicer for
inclusion in the annual report on Form 10-K relating to the Trust for the
fiscal year [___] (the "Annual Report"), and all reports provided for
inclusion on Form 8-K containing statements to certificateholders filed in
respect of periods included in the year covered by that Annual Report
(collectively with the Annual Reports, the "Reports"), of the Trust;]
(2) [To be certified by the Trustee] [To the best of my knowledge,
the information in the Reports, to the extent prepared by the [Trustee]
(but not including any information provided to the [Trustee] by the Master
Servicer or Special Servicer, other than to the extent that such
information has been aggregated or manipulated by [Trustee]), 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 as
of the last day of the period covered by the Annual Report;]
(3) [To be certified by the Trustee] [To the best of my knowledge,
the distribution or servicing information required to be provided to the
Trustee by the Master Servicer and the Special Servicer under the Pooling
and Servicing Agreement for inclusion in the Reports is included in the
Reports;]
(4) [To be certified by the Master Servicer and Special Servicer]
[Based on my knowledge, the servicing information required to be provided
under Section 3.15 of the Pooling and Servicing Agreement is included in
such servicing reports delivered by the Special Servicer to the
Depositor;]
(5) [To be certified by the Master Servicer and Special Servicer]
[Based on my knowledge, the servicing information delivered by the Special
Servicer to the Trustee for inclusion in the Reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with
respect to the period covered by such Reports;]
(6) [To be certified by the Master Servicer and Special Servicer] [I
am responsible for reviewing the activities performed by the Special
Servicer under the Pooling and Servicing Agreement and based upon my
knowledge and the annual compliance reviews conducted in preparing the
servicer compliance statements required in such reports under Item 1123 of
Regulation AB with respect to the Special Servicer, and except as
disclosed in the compliance certificate delivered by the Special Servicer
under Section 11.09 of the Pooling and Servicing Agreement, the Special
Servicer has fulfilled its obligations under the Pooling and Servicing
Agreement in all material respects;]
(7) [To be certified by the Master Servicer and Special Servicer]
[The accountant's statement delivered pursuant to Section 11.11 of the
Pooling and Servicing Agreement discloses all significant deficiencies
relating to the Special Servicer's compliance with the minimum servicing
standards based upon the report provided by an independent public
accountant, after conducting a review in compliance with the Uniform
Single Attestation Program for Mortgage Bankers or similar procedure, as
set forth in the Pooling and Servicing Agreement;]
(8) [To be certified by the Master Servicer and Special Servicer] [I
am responsible for reviewing the activities performed by [the Master
Servicer] [the Special Servicer] under the Pooling and Servicing Agreement
and based upon my knowledge and the annual compliance review conducted in
preparing the servicer compliance statement provided by the Master
Servicer or Special Servicer, as the case may be, required under the
Pooling and Servicing Agreement, and except as disclosed in such
compliance statement, [the Master Servicer] [the Special Servicer] has
fulfilled its obligations under the Pooling and Servicing Agreement in all
material respects, including the provision of all Reports required to be
submitted to the Trustee thereunder, and that, to the knowledge of [the
Master Servicer] [the Special Servicer], based upon the review required
under the Pooling and Servicing Agreement with respect to [the Master
Servicer] [the Special Servicer], such reports do not contain any material
misstatements or omissions; and]
(9) [To be certified by the Master Servicer and Special Servicer]
[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 Special Servicer required to be delivered
by the Special Servicer under the Pooling and Servicing Agreement in
accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18
and 15d-18 have been delivered pursuant to the terms of the Pooling and
Servicing Agreement. Any material instances of noncompliance with the
servicing criteria have been disclosed in such reports.]
Date: _________________________
[NAME OF COMPANY]
_______________________________
[Signature]
[Title]
EXHIBIT M
FORM OF CONFIDENTIALITY AGREEMENT
[Date]
Bank of America, National Association
NC1-026-06-01
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-3
Re: Information Regarding Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-3
Re: Ladies and Gentlemen:
In connection with the Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-3 (the
"Certificates"), we acknowledge that we will be furnished by the
[Servicer][Special Servicer] (and may have been previously furnished) with
certain information (the "Information"), provided by Xxxxx Fargo Bank, N.A. , as
trustee (the "Trustee"), Banc of America Commercial Mortgage Inc., as Depositor
(the "Depositor") and the borrowers under certain of the Mortgage Loans. For the
purposes of this letter agreement (this "Agreement"), "Representative" of a
Person refers to such Person's directors, officers, employees, and agents; and
"Person" refers to any individual, group or entity.
In connection with and in consideration of our being provided with
Information, we hereby acknowledge and agree that we are requesting and will use
the Information solely for purposes of making investment decisions with respect
to the above-referenced Certificates and will not disclose such Information to
any other Person or entity unless required to do so by law; provided such
Information may be disclosed to the auditors and regulators of the undersigned
or to any person or entity that is contemplating the purchase of any Certificate
held by the undersigned or of an interest therein, but only if such person or
entity confirms in writing such contemplation of a prospective ownership
interest and agrees in writing to keep such Information confidential.
This Agreement shall not apply to any of the Information which: (i)
is or becomes generally available and known to the public other than as a result
of a disclosure directly or indirectly by us or any of our Representatives; (ii)
becomes lawfully available to us on a non-confidential basis from a source other
than you or one of your Representatives, which source is not bound by a
contractual or other obligation of confidentiality to any Person; or (iii) was
lawfully known to us on a non-confidential basis prior to its disclosure to us
by you.
Notwithstanding anything to the contrary contained herein, we (and
each of our employees, representative or other agents) may disclose to any and
all persons, without limitation of any kind, the federal income tax treatment
and tax structure of the above-referenced Certificates, any fact relevant to
understanding the federal tax treatment or tax structure of the above-referenced
Certificates, and all materials of any kind (including opinions or other tax
analysis) relating to such federal tax treatment or tax structure other than the
identity of the Depositor and information that would permit the identification
of the Depositor.
Capitalized terms used but not defined herein shall have the meaning
assigned thereto in that certain Pooling and Servicing Agreement, dated as of
July 1, 2007, by and among the Depositor, the Trustee, Bank of America, National
Association, as Servicer (the "Servicer") and Midland Loan Services, Inc., as
Special Servicer (the "Special Servicer").
The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Depositor, the Servicer, the Special Servicer, the Trustee and the Trust Fund
for any loss, liability or expense incurred thereby with respect to any such
breach by the undersigned or any of its Representatives.
This Agreement, when signed by us, will constitute our agreement
with respect to the subject matter contained herein.
Very truly yours,
[NAME OF ENTITY]
By:____________________________________
Name:
Title:
EXHIBIT N
FORM OF REGULATION S CERTIFICATE
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS) - Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-3
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-3, Class [__ ]
Ladies and Gentlemen:
Reference is made to the Pooling and Servicing Agreement, dated as
of July 1, 2007 (the "Pooling and Servicing Agreement"), by and among Banc of
America Commercial Mortgage Inc., as Depositor (the "Depositor"), Bank of
America, National Association, as Master Servicer (the "Master Servicer"),
Midland Loan Services, Inc., as Special Servicer (the "Special Servicer"), and
Xxxxx Fargo Bank, N.A., as Trustee (the "Trustee"). Capitalized terms used but
not defined herein shall have the meanings ascribed to them in the Pooling and
Servicing Agreement.
This letter relates to US $[__________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Domestic Global Certificate (CUSIP No. ) with the Depository in the name
of [insert name of transferor] (the "Transferor"). The Transferor has requested
a transfer of such beneficial interest in the Certificates for an interest in
the Regulation S Global Certificate (ISIN No. ).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and the Certificates and (i) with respect to transfers
made in accordance with Regulation S under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
[(2) at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on its behalf
reasonably believed that the Transferee was outside the United States,]*
[2. the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the undersigned nor any
person acting on its behalf knows that the transaction was pre-arranged with a
buyer in the United States,]*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer and the
Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated: _________ __, __
----------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
EXHIBIT O
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM
DOMESTIC GLOBAL CERTIFICATE TO REGULATION S
GLOBAL CERTIFICATE DURING THE RESTRICTED PERIOD
(Exchanges or transfers pursuant to
Section 5.02(d) of the Pooling and Servicing Agreement)
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS) - Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-3
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-3, Class [__]
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of July 1, 2007 (the "Pooling and Servicing Agreement"), by and among
Banc of America Commercial Mortgage Inc., as Depositor (the "Depositor"), Bank
of America, National Association, as Master Servicer (the "Master Servicer"),
Midland Loan Services, Inc., as Special Servicer (the "Special Servicer"), and
Xxxxx Fargo Bank, N.A., as Trustee (the "Trustee"). Capitalized terms used but
not defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
This letter relates to US $[__________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Domestic Global Certificate (CUSIP No. _____________) with the Depository
in the name of [insert name of transferor] (the "Transferor"). The Transferor
has requested a transfer of such beneficial interest for an interest in the
Regulation S Global Certificate (CUSIP No. ____________) to be held with
[Euroclear] [Clearstream]* (ISIN No. _____________) through the Depository.
In connection with such request and in respect of such Certificates,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
[(2) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any persons acting on its behalf
reasonably believed that the transferee was outside the United States,]**
[2. the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the Transferor nor any
person acting on its behalf knows that the transaction was prearranged with a
buyer in the United States,]
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable,
and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer and the
Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated: _____________, ___
----------
** Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
EXHIBIT P
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM DOMESTIC
GLOBAL CERTIFICATE TO REGULATION S GLOBAL
CERTIFICATE AFTER THE RESTRICTED PERIOD
(Exchange or transfers pursuant to
Section 5.02(d) of the Pooling and Servicing Agreement)
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS) - Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-3
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-3, Class [__ ]
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of July 1, 2007 (the "Pooling and Servicing Agreement"), by and among
Banc of America Commercial Mortgage Inc., as Depositor (the "Depositor"), Bank
of America, National Association, as Master Servicer (the "Master Servicer"),
Midland Loan Services, Inc., as Special Servicer (the "Special Servicer"), and
Xxxxx Fargo Bank, N.A., as Trustee (the "Trustee"). Capitalized terms used but
not defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
This letter relates to US $[__________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Domestic Global Certificate (CUSIP No. _____) with the Depository in the
name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Certificates for an
interest in the Regulation S Global Certificate (ISIN No. _____).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and, (i) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
[(2) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on its behalf
reasonably believed that the transferee was outside the United States,]
(3) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the Transferor nor any
person acting on its behalf knows that the transaction was prearranged
with a buyer in the United States,]*
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable,
and
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
or (ii) with respect to transfers made in reliance on Rule 144 under
the Securities Act, the Transferor does hereby certify that the Certificates
that are being transferred are not "restricted securities" as defined in Rule
144 under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer and the
Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated: ____ __, ____
----------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
EXHIBIT Q
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM REGULATION S GLOBAL
CERTIFICATE TO DOMESTIC GLOBAL CERTIFICATE
(Exchange or transfers pursuant to
Section 5.02(d) of the Pooling and Servicing Agreement)
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS) - Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-3
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-3, Class [__ ]
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of July 1, 2007 (the "Pooling and Servicing Agreement"), by and among
Banc of America Commercial Mortgage Inc., as Depositor (the "Depositor"), Bank
of America, National Association, as Master Servicer (the "Master Servicer"),
Midland Loan Services, Inc., as Special Servicer (the "Special Servicer"), and
Xxxxx Fargo Bank, N.A., as Trustee (the "Trustee"). Capitalized terms used but
not defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
This letter relates to US $[__________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Regulation S Global Certificate (CUSIP No. __________) with [Euroclear]
[Clearstream]* (ISIN No. __________) through the Depository in the name of
[insert name of transferor] (the "Transferor"). The Transferor has requested a
transfer of such beneficial interest in the Certificates for an interest in the
Domestic Global Certificate (CUSIP No. __________).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth in
the Pooling and Servicing Agreement and (ii) Rule 144A under the Securities Act
to a transferee that the Transferor reasonably believes is purchasing the
Certificates for its own account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state or other jurisdiction of the United
States.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer, the
Special Servicer and Banc of America Securities LLC, the Placement Agent of the
offering of the Certificates.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated: ____ __, ____
SCHEDULE I
Mortgage Loan Schedule
Loan Loan
Sequence Number Seller Property Name
-------- -------- -------- ----------------------------------------------------------------------
1 3406070 BofA Presidential Towers
2 101 HRECC Renaissance Mayflower Hotel
3 3405209 BofA Xxx Xxxx Xxxxxx
0 0000000 XxxX Xxxxxxx Xxxxxx Building 9 & 10
5 3406386 BofA Hilton Anatole
6 104 HRECC Xxxxxxxx Xxxx Multifamily (Rollup)
6.1 104 HRECC Cypress Creek
6.2 104 HRECC Xxxx Oaks
6.3 000 XXXXX Xxxx at Landmark
6.4 104 HRECC Summerlyn Place
6.5 104 HRECC Cambridge Crossing
6.6 104 HRECC Xxxxxx Walk
6.7 104 HRECC Lenox Court
7 3406646 BofA Second & Seneca
8 3406563 BofA Xxxxxxxx Xxxxx
0 000 Xxxxxxxx XXX - XXX Portfolio (Rollup)
9.1 100.10 Eurohypo 0000 Xxxxxx Xxxxx Office Building
9.2 100.02 Eurohypo Immigration & Naturalization Services
9.3 100.01 Eurohypo U.S Treasury Financial Management
9.4 100.03 Eurohypo Social Security Administration Building
9.5 100.09 Eurohypo U.S. Courthouse
9.6 100.04 Eurohypo IRS Files Building
9.7 100.06 Eurohypo USDA Forest Service Building
9.8 100.05 Eurohypo Corps of Engineers
9.9 100.08 Eurohypo Xxxxxxxx Federal Building
9.10 100.07 Eurohypo U.S. National Parks Service
10 200 Eurohypo JQH Hotel Portfolio (Rollup)
10.1 200.01 Eurohypo Embassy Suites-Franklin
10.2 200.03 Eurohypo Renaissance Xxxxxx Xxxxxxxxxx Hotel
10.3 200.05 Eurohypo Embassy Suites-St. Xxxxxxx
10.4 200.04 Eurohypo Residence Inn by Marriott
10.5 200.02 Eurohypo Courtyard by Xxxxxxxx
00 000 XXXXX Xxxxxxxxxx Shopping Center
12 300 Eurohypo Xxxxxx Xxxxx 3
13 3405751 BofA Marketplace at Mill Creek
14 3400017 BofA Cascade Village Phase I
15 400 Eurohypo ChampionsGate Hotel
16 3405766 BofA Overlook at King of Prussia
17 3405845 BofA The Heights on West Campus
18 3405753 BofA Xxxxxxx Bay Commons
19 3405768 BofA Hiram Pavilion
20 3405754 BofA Stonecrest Marketplace
21 3405755 BofA Woodstock Square
22 3405961 XxxX 00 Xxxxx Xxxxxx
00 0000000 XxxX Xxxxxxx Xxxxxxx
00 00000 Xxxxxxx Xxxx Xxxx Marketplace
25 3405932 BofA Philly Self Storage Portfolio (Rollup)
25.1 3405932 BofA Philly Self Storage Portfolio - Philly Self Storage of Oregon
25.2 3405932 BofA Philly Self Storage Portfolio - Philly Self Storage of Lancaster
25.3 3405932 BofA Philly Self Storage Portfolio - Philly Self Storage of Germantown
25.4 3405932 BofA Philly Self Storage Portfolio - Philly Self Storage of Kensington
26 3405772 BofA Bartow Marketplace
27 3405773 XxxX Xxxxxxx Xxxxxx Xxxxxx
00 000 Xxxxxxxx 000 0xx Xxx
29 3404645 BofA Xxx Xxxx Xxxxx
00 000 Xxxxxxxx Xxxxxxxxx Xxxxxxx
31 3406314 BofA 00000 Xxxxxxx Xxxxxx
32 3403893 BofA Empire Self Storage Portfolio (Rollup)
32.1 3403893 BofA Empire Self Storage Portfolio - Empire Self Storage Fontana
32.2 3403893 BofA Empire Self Storage Portfolio - Empire Self Storage Etiwanda
32.3 3403893 BofA Empire Self Storage Portfolio - Empire Self Storage Lake Elsinore
32.4 3403893 BofA Empire Self Storage Portfolio - Empire Self Storage Bloomington Cedar
32.5 3403893 BofA Empire Self Storage Portfolio - Empire Self Storage Hesperia
32.6 3403893 BofA Empire Self Storage Portfolio - Empire Self Storage Victorville
32.7 3403893 BofA Empire Self Storage Portfolio - Empire Self Storage Claremont
32.8 3403893 BofA Empire Self Storage Portfolio - Empire Self Storage Bloomington Linden
33 3404734 BofA 12th & Walnut Streets Garage
34 3404317 BofA Airway Properties
35 700 Eurohypo Nantucket Creek
36 3406182 BofA Belk II
37 3405700 BofA Raley's at the Parkway
38 800 Eurohypo Garin Ranch
39 3405457 XxxX Xxxxxxx Xxxxxx Xxxxx
00 00000 XxxX Xxxxxxxxx Xxxxxxxxxxx
00 00000 Xxxxxxx Xxxxx Xxxx Xxxxxxxx Xxxx Portfolio 3
42 900 Eurohypo 0000-0000 Xxxxx Xxx
43 3405759 XxxX Xxxxxx Xxxxx
00 0000 Xxxxxxxx Argosy Apartments
45 3404076 BofA Somerset I and II (Rollup)
45.1 3404076 BofA Somerset I and II - Somerset I - Alsip, IL
45.2 3404076 BofA Somerset I and II - Somerset II
46 3402392 BofA Xxxxx Pavilion II
47 3405760 BofA Xxxxxxxx Central
48 90001146 SunTrust Doubletree Augusta
49 3403580 BofA Xxxxx Warehouse 858
50 3404871 BofA Xxxxxx Valley Business Park
51 90001158 SunTrust Hilton Garden Chattanooga
52 3405887 BofA Xxxxxxxxx Electric
53 3405454 XxxX Xxxxxxxx Xxxxxxx
00 0000 Xxxxxxxx 000 Xxxxxxxxxxx Xxxxxx
55 22651 Bridger The Shops at Dove Valley Ranch
56 3405684 BofA Crown Distributing Headquarters
57 3405449 BofA Xxxxxx Creek
58 3405776 BofA Paradise Place
59 3405466 BofA Riverview Village
60 3402090 BofA Marlboro Self Storage
61 3405762 BofA Gateway Plaza - Jacksonville
62 9000655 SunTrust ezStorage Corp. - Ruxton
63 3406322 BofA 000-000 Xxxxxx Xxxxxx
64 3406266 BofA 0000 Xxxxxxxx Xxxxxxxxx
65 3405691 BofA 655 Engineering
66 9000658 SunTrust ezStorage Corp. - Xxxx Burnie
67 9000606 SunTrust ezStorage Corp. - Lanham
68 3405458 BofA Hunters Xxxx Crossing
69 3405456 BofA The Highlands
70 3401449 XxxX Xxxxxx Xxxxxxxx Xxxxxx
00 0000 Xxxxxxxx Aspen Gardens
72 3405460 BofA Xxxxx Xxxx
73 90001059 SunTrust R Street Storage
74 1400 Eurohypo Xxxxxxx (Rollup)
74.1 1400.01 Eurohypo 00 Xxxxxxx Xxxxxx
74.2 1400.02 Eurohypo 0 Xxxxx Xxxx
75 1300 Eurohypo Huntsville Office & Retail Portfolio (Rollup)
75.1 1300.01 Eurohypo 0000 Xxxxxx Xxxxx
75.2 1300.02 Eurohypo Staples Center
76 90001232 SunTrust Surgical Associates of Richmond
77 22442 Bridger Alpine Village Apartments
78 3400184 BofA The Store Room - Pompano Beach
79 3405459 BofA Xxxxxxxx Crossing
80 1500 Eurohypo Bella Vista Apartments
81 3405451 BofA Flower Mound Crossing
82 3403583 BofA Xxxxx Warehouse 851
83 3405447 XxxX Xxxxx Xxxxxxx Xxxxx
00 0000000 XxxX Xxxxx Store 83
85 3406097 BofA 23-25 & 00-00 Xxxx 000xx Xxxxxx
86 3405077 XxxX Xxxxx Xxxxx
00 0000000 XxxX Xxxxxx at Xxxxx
88 3405452 BofA Xxxx Xxxxxx
89 3405445 BofA 00xx Xxxxxx Market
90 3404899 XxxX Xx Xxxxxxx Xxxxxx
00 0000000 XxxX Xxxx West Plaza
92 1600 Eurohypo 00 Xxxxx Xxxxx
93 3404238 BofA 000 Xxxxxxxx Xxxxxx Extension
94 9000504 SunTrust Xxxxxxx Xxx Xxxxxxxxxxx
00 00000 Xxxxxxx Xxxxxxxxx Center
96 9000502 SunTrust Xxxxxxx Xxxxx
97 23127 Bridger Old Port Buildings
98 3402757 XxxX Xxxxxx Xxxxxxx Xxxxx
00 90001274 SunTrust Highland Pavilion
100 3405448 BofA East Gate
101 3406643 BofA Old Peachtree Commons
102 90001170 SunTrust Holiday Inn San Antonio
103 3405985 BofA Comfort Inn - Fairfield, NJ
104 3405455 BofA Fury's Ferry
105 3405450 BofA Bellerive Plaza
106 3405879 BofA Shallotte Commons
107 1700 Eurohypo Convention Center Garage
108 9000389 SunTrust East Village
109 3405667 XxxX Xx Xxxxx Xxxxxxxx Xxxxxx - Xxxx X
000 0000 Eurohypo 000-000 Xxxx 000xx Xxxxxx
111 3403586 BofA Xxxxx Store 53
112 3405461 XxxX Xxxxxx xx Xxxxxxxx
000 00000 Xxxxxxx Quietwater Business Park
114 2000 Eurohypo 0000 Xxxx Xxxxxxx Xxxxx
115 1900 Eurohypo 5661-5669 Broadway
116 3406000 BofA Capitol Distributors
117 3402374 BofA Xxxxx Store 91
118 19512 Bridger Central Self-Storage Lafayette
Dexter Magnetic Technologies Crossed Loans
119 3404557 BofA Dexter Magnetic Technologies - Hicksville NY
120 3404556 BofA Dexter Magnetic Technologies - Elk Grove, IL
121 3403007 XxxX Xxxxxxxxx-Xxxxxxxx
000 00000 Xxxxxxx Xxxxx Xxx - Xxxxxx
123 00000 Xxxxxxx Xxxx Xxxx Xxxxxx
124 90001195 SunTrust Laurel Forest
125 23907 Bridger Sleep Inn Lake Xxxxxx
126 2100 Eurohypo Xxxxxx Street
127 3403584 BofA Xxxxx Store 18
128 23448 Bridger Second Dimension Apartments
129 90001217 SunTrust Mercantile Bank
130 0000000 BofA Briarwood Shopping Village
131 90001210 SunTrust Newnan Medical Office
132 23816 Xxxxxxx Xxxxx Ave Industrial
133 2200 Eurohypo 00 X Xxxx Xxxxxx
134 90001289 SunTrust All American Self Storage
135 90001182 SunTrust Xxxxxx Apartments
136 3406220 BofA 000 Xxxxx Xx. Xxxxxxx Xxxxx
137 90001207 SunTrust Cheroot & Superior Building
138 3405465 XxxX Xxxxxx Xxxxxx
000 00000 Bridger ChemTreat Building
140 90001224 SunTrust XX Xxxxx
141 3405463 BofA Suncreek Village
142 9000273 SunTrust Xxxxxxxx Industrial
143 90001155 SunTrust Grand K Warehouse
144 3405446 BofA Xxxxxxxx Plaza
145 3405464 XxxX Xxxxxxx Xxxxx
000 00000 Bridger Islip Industrial
147 9000481 SunTrust Scottish Rite Xxxxxxxx
000 00000 Xxxxxxx Xxxxxxxx Xxxxxx
149 90001294 SunTrust Whiskey Bottom Bus Center
150 9000882 SunTrust Lafitte Square Office
151 90001100 SunTrust Xxxxxxxx Xxxx
Zip
Sequence Street Address City State Code
-------- ------------------------------------------------------------------------ ------------------ ------- -------
1 000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx XX 00000
2 0000 Xxxxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000
0 Xxx Xxxx Xxxxxx Xxx Xxxx XX 00000
4 1400 & 0000 Xxxxxxx Xxxxxxxxx Xxxxxxx Xxxx XX 00000
5 0000 Xxxxx Xxxxxxxx Xxxxxxx Xxxxxx XX 00000
6 Various Various Various Various
6.1 0000 Xxxxxxx Xxxxx Xxxxx Xxxxxxxxxxx XX 00000
6.2 0000 Xxxxxx Xxxx Xxxxxxxxx XX 00000
6.3 000 Xxxxx Xxxxxxx Xxxxxx and 000 Xxxxxx Xxxxxxx Xxxxxxxxxx XX 00000
6.4 00000 Xxxxxxxx Xxxxx Xxxxxx XX 00000
6.5 0000 00xx Xxxxxx Xxx Xxxxxxxxxx XX 00000
6.6 0000 00xx Xxxxxx Xxx Xxxxxxxxxx XX 00000
6.7 0000 00xx Xxxxxx Xxx Xxxxxxxxxx XX 00000
7 1101 and 0000 Xxxxxx Xxxxxx Xxxxxxx XX 00000
8 0000 Xxxxxxxxx Xxxxx Xxx Xxxxx XX 00000
9 Various Various Various Various
9.1 0000 Xxxxxx Xxxxx Xxxxxx Xxxx XX 00000
9.2 000 Xxxxxxxxxx Xxxxx Xxxxxxx XX 00000
9.3 00000 Xxxxxxxx Xxxx Xxxxxxxxxxxx XX 00000
9.4 000 Xxxxx Xxxxxxxxx Xxxxxx Xxx Xxxxxxxxxx XX 00000
9.5 000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
9.6 0000 X Xxxxxx Xxxxxx XX 00000
9.7 000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxxxx XX 00000
9.8 0000 Xxxxxxxxx Xxxxx Xxxxxxxxx Xxxxxxxxxxx XX 00000
9.9 000 Xxxxxxxx Xxxxx Xxxxxxx XX 00000
9.10 000 Xxxxxx Xxxx Xxxxx Xxxx XX 00000
10 Various Various Various Various
10.1 000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxxx XX 00000
10.2 000 Xxxx Xxxxxxx Xxxxx Xxxxxxxxxx XX 00000
10.3 Xxx Xxxxxxxxxx Xxxxxx Xxxxx Xx. Xxxxxxx XX 00000
10.4 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000
10.5 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000
11 0000 Xxxxxx Xxxxxxx Xxxxxxxxxx XX 00000
12 00000 Xxxx Xxx Xxxxxx Xxxxxx Xxxxx XX 00000
13 0000-0000 Xxxx xx Xxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxx XX 00000
14 00000 Xxxxx Xxxxxxx 00 Xxxx XX 00000
15 1400 & 0000 Xxxxxxx Xxxxxxxxx XxxxxxxxxXxxx XX 00000
16 000 Xxxxxxx Xxxxxxxxx Xxxx xx Xxxxxxx XX 00000
17 000 Xxxxxxxxx Xxxxxx Xxxxx Xxxxxxx Xxx XX 00000
18 000 Xxxxx Xxxxxxx (NC 150) Xxxxxxxxxxx XX 00000
19 0000 Xxxxx Xxx Xxxxx Xxxxxxx Xxxxx XX 00000
20 0000-0000 Xxxx Xxxxxxx Xxxxxxxx XX 00000
21 000-000 Xxxxxxxxx Xxxxxx Xxxxxx Xxxxxxxxx XX 00000
22 00 Xxxxx Xxxxxx Xxxxxx XX 00000
23 000-000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxx Xxxxx XX 00000
24 0000-0000 Xxxxxx Xxxx Xxxx Xxxx XX 00000
25 Various Philadelphia PA Various
25.1 0000 Xxxxx 00xx Xxxxxx Xxxxxxxxxxxx XX 00000
25.2 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
25.3 000 Xxxx Xxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
25.4 0000 X Xxxxxx Xxxxxxxxxxxx XX 00000
26 000-000 Xxxxxxxxxxx Xxxxxxxxx Xxxxxxxxxxxx XX 00000
27 7751- 0000 0xx Xxxxxx Xxxxx Xx. Xxxxxxxxxx XX 00000
28 000 0xx Xxxxxx Xxx Xxxx XX 00000
29 0000 Xxxx Xxxxxx Xxxxxxx XX 00000
30 1659, 1691, 1713 and 0000 Xxxxx 000 Xxxxxxxxx Xxxxxxxx XX 00000
31 00000 Xxxxxxx Xxxxxx Xxxxxxxx XX 00000
32 Various Various CA Various
32.1 00000 Xxxxxxxx Xxxxxx Xxxxxxx XX 00000
32.2 00000 Xxxxxxxx Xxxxxxxxx Xxxxxxxx XX 00000
32.3 00000 Xxxxxxx Xxxxxx Xxxx Xxxxxxxx XX 00000
32.4 00000 Xxxxxxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000
32.5 0000 Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000
32.6 00000 Xxxxx Xxxx Xxxxxxxxxxx XX 00000
32.7 000 Xxxxx Xxxxxxx Xxxxxxxxx XX 00000
32.8 00000 Xxxxxx Xxxxxx Xxxxxxxxxxx XX 00000
33 0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
34 3030 and 0000 Xxxxxx Xxxxxx Xxxxx Xxxx XX 00000
35 0000 Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000
36 0000 Xxxx Xxxxxx Xxxx Xxxxxxxxx XX 00000
37 25005, 25015, 25035, 25055, 25065, 25075, 25085 & 00000 Xxxx Xxxxxx Xxxx Xxxxxx XX 00000
38 8610, 8630, 8640, 8650, and 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
39 0000 Xxxxxxx Xxxx Xxxxxxx XX 00000
40 0000-0000 Xxxxx Xxxxxxx Xxxxx Xxx Xxxxx XX 00000
41 00000 Xxxxx Xxxxxx, 0000 Xxxxx 000xx Xxxxxx and 0000 Xxxxx 000xx Xxxxxx Xxxxx XX 00000
42 0000-0000 Xxxxx Xxxxxx Xxx Xxxx XX 00000
43 00000 Xxxxx Xxxxxxx Xxxxx Xxxx Xxxxx XX 00000
44 0000 Xxxxxx Xxxx Xxxxxx XX 00000
45 Xxxxxxx Xxxxxxx XX 00000
45.1 0000 Xxxx 000xx Xxxxxx Xxxxx XX 00000
45.2 0000-0000 Xxxx 000xx Xxxxxx Xxxxxxxxxxx Xxxx XX 00000
46 0000 Xxxxxx Xxxx Xxxxx XX 00000
47 000 Xxxxxxx 00 Xxxxxx Xxxxxxxx XX 00000
48 0000 Xxxxxxxxx Xxxxxxx Xxxxxxx XX 00000
49 000 Xxxxx Xxxxxxxx Xxxx Xxxxxxxxxxxx XX 00000
50 14300-14340 Elsworth Street & 00000-00000 Xxxxxxxxxxx Xxxxx Xxxxxx Xxxxxx XX 00000
51 000 Xxxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000
52 0000 Xxxxxxxx Xxxxxx Xxxxx Xxxx XX 00000
53 4000-4020 Xxxxxxx X. Xxxx Xxxxxx Xxxxxxxxx XX 00000
54 000 Xxxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
55 0000 Xxxx Xxxxxxxx Xxxxxxx Xxxx Xxxxx XX 00000
56 00000 00xx Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
57 0000-0000 Xxxxxx Xxxxxxx and 000 Xxxx Xxxxxx Xxxx Xxxxxxxxxx XX 00000
58 0000-0000 Xxxxxxxxx Xxxx Xxxx Xxxx Xxxxx XX 00000
59 0000 Xxxxxxxxx Xxxxx Xxxx Xxxxxxxxx Xxxxxxxxx XX 00000
60 000 Xxxxxxx 0 Xxxxx Xxxxxxxxxxx XX 00000
61 0000 Xxxxxxx Xxxxxxxxx Xxxxxxxxxxxx XX 00000
62 0000 Xxx Xxxxxxx Xxxx Xxxxxxxxx XX 00000
63 000-000 Xxxxxx Xxxxxx Xxx Xxxx XX 00000
64 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxx XX 00000
65 000 Xxxxxxxxxxx Xxxxx Xxxxxxxx XX 00000
66 0000 Xxxxxxx Xxxxxxx Xxxx Xxxxxx XX 00000
67 0000 Xxxxxx Xxxxxxxxx Xxxxxx XX 00000
68 3941, 3945 and 0000 Xxxxxx Xxxxx and 0000 Xxxx Xxxx Xxxxx XX 00000
00 XX 000 & Xxxxxx Xxxx Xxxxxx Xxxxx XX 00000
70 0000 Xxxxxxxxx 00xx Xxxxxx Xxxxxxxx XX 00000
71 000 Xxxxxxx Xxxx Xxx Xxxxxxxxx XX 00000
72 0000 Xxxxx Xxxxx Xxxx Xxxxxxxxxx XX 00000
73 000 X Xxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000
74 Xxxxxxx Xxxxxxx XX 00000
74.1 00 Xxxxxxx Xxxxxx Xxxxx Xxxxxxx XX 00000
74.2 0 Xxxxx Xxxx Xxxxxxxxxx XX 00000
75 Various Huntsville AL Various
75.1 0000 Xxxxxx Xxxxx Xxxxxxxxxx XX 00000
75.2 0000 Xxxxx Xxxxxxxx Xxxxxxx Xxxxxxxxxx XX 00000
76 0000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxxx XX 00000
77 000 X Xxxxxx Xxxxxxxxx Xxxxxxxx XX 00000
78 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxxxx XX 00000
79 0000 Xxxx Xxxxxx Xxxx Xxxxxx XX 00000
80 000 Xxxxxxxxxx Xxxx Xxxxxxx XX 00000
81 0000-0000 Xxxxxx Xxxxx Xxxx Xxxxxx Xxxxx XX 00000
82 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000
83 000 Xxxxx Xxxxxxx Xxxx Xxxxxx Xxxxx XX 00000
84 0000 Xxxx 00xx Xxxxxx Xxxxxxxxxxxx XX 00000
85 23-25 & 00-00 Xxxx 000xx Xxxxxx Xxx Xxxx XX 00000
86 0000 Xxxx Xxxxxxxxx Xxxxxxx XX 00000
87 0000 Xxxxx Xxxx Xxxxxxxx XX 00000
88 0000 Xxxx Xxxxxx Xxxx Xxxxxx XX 00000
89 0000 Xxxx 00xx Xxxxxx Xxxxx XX 00000
90 000 Xxxx Xxxxxxx Xxxx Xxxxx Xx XX 00000
91 000-000 Xxxxx Xxxx Xxxxxxxxx Xxxxxxxxx XX 00000
92 00 Xxxxx Xxxxx Xxxxxxxxxx XX 00000
93 000 Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxx XX 00000
94 0000 Xxxxxxxxx 00xx Xxxxxxxxx Xxxxxxxxxxx XX 00000
95 000 Xxxxxxxxx 00xx Xxxxxx Xxxxxxxxx XX 00000
96 0000 Xxx Xxx Xxxxxxxxx Xxxxxxxxx XX 00000
97 432, 434, 436 & 000 Xxxx Xxxxxx, 42 & 00 Xxxxx Xxxxxx Xxxxxxxx XX 00000
98 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxx XX 00000
99 00 Xxxxxxxx Xxxxxxxx Xxxxx Xxxxx XX 00000
100 000 Xxxx Xxxx Xxxx Xxxxx XX 00000
101 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxx XX 00000
102 0000 Xxxxxxxxx Xxxxx Xxx Xxxxxxx XX 00000
103 000 Xxxxx 00 Xxxx Xxxxxxxxx XX 00000
104 000 Xxxx'x Xxxxx Xxxx Xxxxxxx XX 00000
105 000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxxxxxx XX 00000
106 0000 Xxxx Xxxxxx Xxxxxxxxx XX 00000
107 000 Xxxxx 0xx Xxxxxx Xx. Xxxxx XX 00000
108 239 and 000 Xxxxxx Xxxx Xxxxx XX 00000
109 0000 Xxxxx Xxxxxxxx Xxxxxxx Xxx Xxxxx XX 00000
110 000-000 Xxxx 000xx Xxxxxx Xxx Xxxx XX 00000
111 0000 Xxxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
112 0000 Xxx Xxxxx Xxxx Xxxx Xxxx Xxxxx XX 00000
113 0000 Xxxx Xxxxxx Xxxxxxx Xxxx Xxxxxx XX 00000
114 0000 Xxxx Xxxxxxx Xxxxx Xxx Xxxxxxxxx XX 00000
115 0000-0000 Xxxxxxxx Xxxxx XX 00000
116 000 Xxxx Xxxxxx Xxx XX 00000
117 0000 Xxxxx Xxxxxxxx Xxxxxxxx XX 00000
118 0000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
119 000 Xxxxx Xxxx Xxxxxxxxxx XX 00000
120 0000 Xxxxx Xxxxxx Xxx Xxxxx XX 00000
121 0000 Xxxxxxxx Xxxxxx Xxxxxxx XX 00000
122 0000 Xxx Xxxx Xxxx Xxxxxx XX 00000
123 0000 Xxxx Xxxxxxxx Xxxxx Xxxxx XX 00000
124 0000 0xx Xxxxxx Xxxxxxxxx Xxxxxxx XX 00000
125 00000 Xxxxxxxxxx Xxxxx Xxxxxxxxxxxx XX 00000
126 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx XX 00000
127 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxxx XX 00000
128 0000 Xxxxxxxx Xxxxx Xxxxx Xxxx Xxxxx XX 00000
129 00000 Xxxxxxxx Xxxxx Xxxxxxx XX 00000
130 0000-0000 Xxxxx Xxxx Xxxxxxxx Xxxxxxxx XX 00000
131 000 Xxxxxx Xxxxxxxx Xxxxxx Xxxxxx XX 00000
132 0000 Xxxxx Xxxxxx Xxxxxxxxx XX 00000
133 00 Xxxx Xxxx Xxxxxx Xxxxxxx XX 00000
134 000 Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxxx XX 00000
135 000 Xxxxxx Xxxxxx Xxxxx XX 00000
136 000 Xxxxx Xxxxx Xxxxxxx Xxxxx Xxx Xxxxxxx XX 00000
137 1901 & 0000-0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000
138 0000 Xxxxxxx Xxxx Xxxxxxx XX 00000
139 0000 Xxxxxxxx Xxxxxxxxx Xxxx Xxxxx XX 00000
140 0000 Xxxxxxxx Xxxxxxx Xxxxxxxxxx XX 00000
141 0000 Xxxx Xxxxx Xxxxx XX 00000
142 3300-3399 Xxxxxxxxx 00xx Xxxxxx Xxxx Xxxxxxxxxx XX 00000
143 000 Xxxxxxx Xxxxxxxxx Xxxxxx XX 00000
144 2500, 2510, and 0000 Xxxxxxx Xxxx Xxxxxxxxx XX 00000
145 000 Xxxx Xxxxxxxxxx Xxxx Xxxxxxxx XX 00000
146 1 & 00-00 Xxxxxxxx Xxxxx Xxxxxxxxxx XX 00000
147 000 Xxxx Xxxx Xxxxxx Xxxxxxx XX 00000
148 1968 & 0000 Xxxxxxxx Xxxxx Xxxxxxx XX 00000
149 0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx XX 00000
150 000 Xxxx Xxxxxxx Xxxxxx Xxxx Xxxxxxxxx XX 00000
151 000 Xxx Xxxxxx Xxxxxxxxx XX 00000
Remaining
Term
To
Stated Stated
Mortgage Amortization Original Cut-off Maturity Maturity Due Monthly
Sequence Rate Basis Balance Date Balance (months) Date Date Payment
-------- -------- ------------ ------------ -------------- --------- --------- ------- ------------
1 5.389% Actual/360 $325,000,000 $325,000,000 118 5/1/2017 First 1,479,654.66
2 5.665% Actual/360 200,000,000 200,000,000 56 3/1/2012 First 957,280.09
3 6.281% Actual/360 187,500,000 187,500,000 56 3/1/2012 First 994,957.68
4 5.621% Actual/360 183,750,000 183,750,000 118 5/1/2017 First 872,592.38
5 5.545% Actual/360 175,000,000 175,000,000 119 6/1/2017 First 819,803.10
6 5.800% Actual/360 175,000,000 175,000,000 55 2/1/2012 First 857,581.02
6.1 49,060,694 49,060,694
6.2 44,002,890 44,002,890
6.3 36,416,185 36,416,185
6.4 22,760,116 22,760,116
6.5 9,104,046 9,104,046
6.6 9,104,046 9,104,046
6.7 4,552,023 4,552,023
7 5.538% Actual/360 175,000,000 175,000,000 118 5/1/2017 First 818,768.08
8 5.611% Actual/360 166,250,000 166,250,000 123 10/1/2017 First 788,219.61
9 5.620% Actual/360 125,000,000 125,000,000 118 5/6/2017 Sixth 593,547.45
9.1 43,595,607 43,595,607
9.2 14,664,389 14,664,389
9.3 14,502,155 14,502,155
9.4 11,500,000 11,500,000
9.5 10,520,082 10,520,082
9.6 8,038,462 8,038,462
9.7 7,779,057 7,779,057
9.8 7,608,980 7,608,980
9.9 3,596,379 3,596,379
9.10 3,194,890 3,194,890
10 5.701% Actual/360 100,000,000 100,000,000 118 5/6/2017 Sixth 481,681.71
10.1 33,066,667 33,066,667
10.2 29,333,333 29,333,333
10.3 16,200,000 16,200,000
10.4 11,866,667 11,866,667
10.5 9,533,333 9,533,333
11 6.470% Actual/360 86,000,000 86,000,000 84 7/1/2014 First 470,123.38
12 5.472% Actual/360 58,400,000 58,400,000 57 4/6/2012 Sixth 270,002.67
13 5.448% Actual/360 57,307,446 57,307,446 116 3/1/2017 First 263,765.15
14 5.710% Actual/360 50,000,000 50,000,000 119 6/1/2017 First 290,517.15
15 6.720% Actual/360 50,000,000 50,000,000 103 2/1/2016 First 323,302.58
16 5.448% Actual/360 47,065,383 47,065,383 116 3/1/2017 First 216,624.69
17 5.423% Actual/360 37,750,000 37,750,000 117 4/1/2017 First 172,967.97
18 5.448% Actual/360 37,680,787 37,680,787 116 3/1/2017 First 173,430.84
19 5.448% Actual/360 37,609,248 37,609,248 116 3/1/2017 First 173,101.57
20 5.448% Actual/360 34,515,625 34,515,625 116 3/1/2017 First 158,862.76
21 5.448% Actual/360 29,006,478 29,006,478 116 3/1/2017 First 133,506.18
22 5.647% Actual/360 28,100,000 28,100,000 83 6/1/2014 First 134,070.50
23 5.448% Actual/360 27,854,444 27,854,444 116 3/1/2017 First 128,203.79
24 5.895% Actual/360 27,000,000 27,000,000 179 6/1/2022 First 160,060.48
25 5.737% Actual/360 25,620,000 25,620,000 118 5/1/2017 First 124,186.13
25.1 10,968,101 10,968,101
25.2 6,959,483 6,959,483
25.3 5,185,683 5,185,683
25.4 2,506,733 2,506,733
26 5.448% Actual/360 23,297,527 23,297,527 116 3/1/2017 First 107,229.97
27 5.448% Actual/360 23,172,886 23,172,886 116 3/1/2017 First 106,656.29
28 5.508% Actual/360 22,000,000 22,000,000 118 5/1/2017 First 102,382.50
29 5.701% Actual/360 21,700,000 21,700,000 119 6/1/2017 First 125,960.64
30 5.614% Actual/360 21,450,000 21,450,000 117 4/6/2017 Sixth 101,744.00
31 5.697% Actual/360 19,800,000 19,800,000 117 4/1/2017 First 114,875.37
32 5.890% Actual/360 19,000,000 19,000,000 76 11/1/2013 First 112,574.39
32.1 3,597,000 3,597,000
32.2 3,458,000 3,458,000
32.3 2,522,000 2,522,000
32.4 2,414,000 2,414,000
32.5 $2,250,000 $2,250,000
32.6 1,894,000 1,894,000
32.7 1,570,000 1,570,000
32.8 1,295,000 1,295,000
33 5.675% Actual/360 18,500,000 18,500,000 115 2/1/2017 First 107,081.17
34 5.655% Actual/360 17,700,000 17,700,000 114 1/1/2017 First 102,226.69
35 6.010% Actual/360 17,300,000 17,300,000 58 5/6/2012 Sixth 87,847.56
36 5.716% Actual/360 17,000,000 17,000,000 118 5/1/2017 First 82,101.34
37 5.839% Actual/360 17,000,000 17,000,000 117 4/1/2017 First 100,170.62
38 5.910% Actual/360 16,750,000 16,750,000 56 3/6/2012 Sixth 83,639.50
39 5.410% 30/360 16,133,156 16,133,156 119 6/1/2017 First 72,733.64
40 5.724% Actual/360 16,000,000 16,000,000 114 1/1/2017 First 93,107.56
41 5.702% Actual/360 15,915,000 15,915,000 117 4/1/2017 First 92,390.90
42 6.725% Actual/360 15,000,000 15,000,000 60 7/1/2012 First 85,230.03
43 5.448% Actual/360 14,649,463 14,649,463 116 3/1/2017 First 67,426.10
44 5.490% Actual/360 14,000,000 14,000,000 59 6/1/2012 First 64,939.58
45 6.150% Actual/360 13,900,000 13,900,000 120 7/1/2017 First 84,682.71
45.1 10,973,684 10,973,684
45.2 2,926,316 2,926,316
46 5.973% Actual/360 13,700,000 13,700,000 117 4/1/2017 First 81,900.76
47 5.448% Actual/360 13,653,259 13,653,259 116 3/1/2017 First 62,840.94
48 6.140% Actual/360 12,500,000 12,477,852 118 5/1/2017 First 76,072.61
49 5.880% Actual/360 12,395,086 12,309,507 113 12/1/2016 First 73,361.23
50 5.798% Actual/360 12,100,000 12,100,000 118 5/1/2017 First 70,981.71
51 5.700% Actual/360 11,500,000 11,477,530 118 5/1/2017 First 66,746.05
52 5.761% 30/360 11,000,000 11,000,000 59 6/1/2012 First 52,809.17
53 5.410% 30/360 10,719,085 10,719,085 119 6/1/2017 First 48,325.21
54 5.654% Actual/360 10,600,000 10,600,000 118 5/7/2017 Seventh 61,213.80
55 5.734% Actual/360 10,300,000 10,300,000 119 6/1/2017 First 60,003.35
56 5.827% Actual/360 10,200,000 10,200,000 118 5/1/2017 First 50,217.41
57 5.410% 30/360 10,148,677 10,148,677 119 6/1/2017 First 45,753.62
58 5.448% Actual/360 10,148,501 10,148,501 116 3/1/2017 First 46,709.83
59 5.410% 30/360 10,120,995 10,120,995 119 6/1/2017 First 45,628.82
60 6.129% Actual/360 10,100,000 10,100,000 119 6/1/2017 First 61,394.79
61 5.448% Actual/360 10,098,326 10,098,326 116 3/1/2017 First 46,478.89
62 6.170% Actual/360 10,060,000 10,060,000 109 8/1/2016 First 52,443.57
63 5.480% Actual/360 10,050,000 10,050,000 119 6/1/2017 First 46,532.43
64 5.802% Actual/360 10,000,000 10,000,000 119 6/1/2017 First 58,688.04
65 5.616% Actual/360 9,900,000 9,900,000 118 5/1/2017 First 56,933.74
66 6.170% Actual/360 9,890,000 9,890,000 109 8/1/2016 First 51,557.35
67 6.170% Actual/360 9,870,000 9,870,000 109 8/1/2016 First 51,453.09
68 5.410% 30/360 9,789,751 9,789,751 119 6/1/2017 First 44,135.46
69 5.410% 30/360 9,745,034 9,745,034 119 6/1/2017 First 43,933.86
70 6.014% Actual/360 9,500,000 9,500,000 108 7/1/2016 First 57,042.84
71 5.740% Actual/360 9,440,000 9,440,000 116 3/6/2017 Sixth 55,029.32
72 5.410% 30/360 9,346,170 9,346,170 119 6/1/2017 First 42,135.65
73 5.930% Actual/360 9,100,000 9,100,000 60 7/1/2012 First 45,593.74
74 5.654% Actual/360 9,000,000 9,000,000 118 5/7/2017 Seventh 51,973.98
74.1 4,837,004 4,837,004
74.2 4,162,996 4,162,996
75 5.842% Actual/360 9,000,000 9,000,000 119 6/6/2017 Sixth 53,048.73
75.1 5,750,000 5,750,000
75.2 3,250,000 3,250,000
76 5.990% Actual/360 8,600,000 8,600,000 120 7/1/2017 First 52,846.45
77 5.636% Actual/360 8,500,000 8,500,000 118 5/1/2017 First 48,989.84
78 6.365% Actual/360 8,466,255 8,458,398 107 6/1/2016 First 52,763.06
79 5.410% 30/360 8,434,692 8,434,692 119 6/1/2017 First 38,026.40
80 5.720% Actual/360 8,400,000 8,400,000 117 4/6/2017 Sixth 48,860.15
81 5.410% 30/360 8,341,692 8,341,692 119 6/1/2017 First 37,607.13
82 5.880% Actual/360 8,396,093 8,338,124 113 12/1/2016 First 49,692.89
83 5.410% 30/360 8,192,687 8,192,687 119 6/1/2017 First 36,935.36
84 5.880% Actual/360 8,155,667 8,099,358 113 12/1/2016 First 48,269.92
85 5.772% Actual/360 8,000,000 8,000,000 82 5/1/2014 First 39,014.44
86 5.688% Actual/360 8,000,000 8,000,000 118 5/1/2017 First 46,371.22
87 5.765% 30/360 $7,892,542 $7,892,542 59 6/1/2012 First 37,917.09
88 5.410% 30/360 7,721,653 7,721,653 119 6/1/2017 First 34,811.79
89 5.410% 30/360 7,711,759 7,711,759 119 6/1/2017 First 34,767.18
90 5.969% Actual/360 7,600,000 7,600,000 119 6/1/2017 First 45,414.48
91 5.410% 30/360 7,531,973 7,531,973 119 6/1/2017 First 33,956.64
92 5.654% Actual/360 7,500,000 7,500,000 118 5/7/2017 Seventh 43,311.65
93 5.872% Actual/360 7,500,000 7,500,000 119 6/1/2017 First 37,209.72
94 6.140% Actual/360 7,500,000 7,500,000 115 2/1/2017 First 45,643.57
95 5.768% Actual/360 7,500,000 7,492,196 119 6/1/2017 First 43,853.76
96 6.450% Actual/360 7,500,000 7,459,712 114 1/1/2017 First 47,158.75
97 5.786% Actual/360 7,300,000 7,300,000 119 6/1/2017 First 42,767.91
98 6.169% Actual/360 7,300,000 7,300,000 111 10/1/2016 First 44,563.49
99 5.680% Actual/360 7,200,000 7,185,870 118 5/1/2017 First 41,697.62
100 5.410% 30/360 6,800,038 6,800,038 119 6/1/2017 First 30,656.84
101 5.848% Actual/360 6,684,000 6,684,000 118 5/1/2017 First 39,423.12
102 5.970% Actual/360 6,400,000 6,388,219 118 5/1/2017 First 38,247.88
103 5.862% Actual/360 6,400,000 6,387,933 118 5/1/2017 First 37,805.26
104 5.410% 30/360 6,380,929 6,380,929 119 6/1/2017 First 28,767.35
105 5.410% 30/360 6,092,460 6,092,460 119 6/1/2017 First 27,466.84
106 5.765% 30/360 6,077,500 6,077,500 59 6/1/2012 First 29,197.32
107 6.113% Actual/360 6,000,000 6,000,000 119 6/6/2017 Sixth 36,410.08
108 6.160% Actual/360 5,800,000 5,794,401 119 6/1/2017 First 35,372.79
109 5.640% Actual/360 5,500,000 5,500,000 118 5/1/2017 First 26,209.03
110 5.911% Actual/360 5,100,000 5,100,000 58 5/6/2012 Sixth 25,470.66
111 5.880% Actual/360 4,873,218 4,839,572 113 12/1/2016 First 28,842.50
112 5.410% 30/360 4,802,876 4,802,876 119 6/1/2017 First 21,652.97
113 5.948% Actual/360 4,755,000 4,750,219 119 6/1/2017 First 28,349.85
114 5.807% Actual/360 4,600,000 4,600,000 117 4/6/2017 Sixth 22,569.34
115 5.790% Actual/360 4,600,000 4,600,000 119 6/6/2017 Sixth 22,503.26
116 5.617% Actual/360 4,560,000 4,560,000 118 5/1/2017 First 21,641.05
117 5.880% Actual/360 4,573,091 4,541,517 113 12/1/2016 First 27,066.18
118 5.652% Actual/360 4,500,000 4,500,000 119 6/1/2017 First 25,981.30
4,500,000 4,500,000
119 5.920% Actual/360 2,300,000 2,300,000 119 6/1/2017 First 13,671.59
120 5.920% Actual/360 2,200,000 2,200,000 119 6/1/2017 First 13,077.17
121 6.105% Actual/360 4,500,000 4,500,000 113 12/1/2016 First 27,284.30
122 5.821% Actual/360 4,400,000 4,393,473 119 6/1/2017 First 27,869.78
123 5.926% Actual/360 4,282,500 4,282,500 116 3/1/2017 First 25,472.36
124 5.540% Actual/360 4,300,000 4,280,601 117 4/1/2017 First 26,508.58
125 5.878% Actual/360 4,250,000 4,250,000 120 7/1/2017 First 27,066.74
126 5.904% Actual/360 4,200,000 4,200,000 59 6/6/2012 Sixth 20,951.00
127 5.880% Actual/360 4,219,658 4,190,524 113 12/1/2016 First 24,974.36
128 5.533% Actual/360 4,000,000 3,995,649 119 6/1/2017 First 22,794.45
129 5.760% Actual/360 4,000,000 3,992,286 58 5/1/2012 First 23,368.33
130 5.852% Actual/360 3,900,000 3,900,000 119 6/1/2017 First 23,012.68
131 6.350% Actual/360 3,825,000 3,825,000 120 7/1/2017 First 23,800.52
132 6.163% Actual/360 3,600,000 3,600,000 120 7/1/2017 First 21,962.52
133 5.630% Actual/360 3,500,000 3,500,000 116 3/6/2017 Sixth 16,648.90
134 5.780% Actual/360 3,400,000 3,400,000 119 6/1/2017 First 19,906.32
135 6.160% Actual/360 3,400,000 3,396,718 119 6/1/2017 First 20,735.77
136 5.846% Actual/360 3,350,290 3,346,855 119 6/1/2017 First 19,756.18
137 5.980% Actual/360 3,315,000 3,311,687 119 6/1/2017 First 19,832.49
138 5.410% 30/360 3,238,160 3,238,160 119 6/1/2017 First 14,598.70
139 5.725% Actual/360 3,220,000 3,220,000 118 5/1/2017 First 18,739.94
140 5.990% Actual/360 2,700,000 2,696,098 179 6/1/2022 First 17,379.64
141 5.410% 30/360 2,683,331 2,683,331 119 6/1/2017 First 12,097.35
142 5.960% Actual/360 2,500,000 2,489,472 117 4/1/2017 First 16,046.46
143 5.960% Actual/360 2,350,000 2,345,664 118 5/1/2017 First 14,029.06
144 5.410% 30/360 2,314,703 2,314,703 119 6/1/2017 First 10,435.45
145 5.410% 30/360 2,250,179 2,250,179 119 6/1/2017 First 10,144.56
146 6.171% Actual/360 2,150,000 2,146,217 118 5/1/2017 First 13,127.65
147 6.330% Actual/360 1,850,000 1,841,258 115 2/1/2017 First 11,487.20
148 6.028% Actual/360 1,600,000 1,598,416 119 6/1/2017 First 9,621.63
149 6.150% Actual/360 1,500,000 1,500,000 120 7/1/2017 First 9,138.42
150 6.680% Actual/360 1,265,000 1,265,000 180 7/1/2022 First 8,145.99
151 6.500% Actual/360 1,220,000 1,218,371 119 6/1/2017 First 8,237.53
Total $3,515,654,613
Primary Master Original
Administrative Servicing Servicing Ownership Cross-Collateralized Amortization
Sequence Fee Rate Fee Rate Fee Rate Interest Loans (months) ARD Loan Grace Period
-------- -------------- --------- --------- ------------- -------------------- ------------ -------- ------------
1 0.071% 0.050% 0.020% Fee No 0 No 0
2 0.021% 0.010% 0.010% Fee No 0 No 5
3 0.031% 0.010% 0.020% Fee No 0 No 5
4 0.071% 0.050% 0.020% Fee No 0 No 5
5 0.051% 0.030% 0.020% Fee/Leasehold No 0 No 5
6 0.021% 0.010% 0.010% Fee No 0 No 5
6.1 Fee
6.2 Fee
6.3 Fee
6.4 Fee
6.5 Fee
6.6 Fee
6.7 Fee
7 0.071% 0.050% 0.020% Fee No 0 No 5
8 0.071% 0.050% 0.020% Fee No 0 No 0
9 0.021% 0.010% 0.010% Fee/Leasehold No 0 No 0
9.1 Fee
9.2 Fee
9.3 Fee
9.4 Fee
9.5 Leasehold
9.6 Fee/Leasehold
9.7 Leasehold
9.8 Fee
9.9 Fee/Leasehold
9.10 Fee
10 0.021% 0.010% 0.010% Fee/Leasehold No 0 No 0
10.1 Fee
10.2 Fee
10.3 Leasehold
10.4 Fee
10.5 Fee
11 0.021% 0.010% 0.010% Fee No 0 No 0
12 0.021% 0.010% 0.010% Fee No 0 No 0
13 0.071% 0.050% 0.020% Fee No 0 No 0
14 0.071% 0.050% 0.020% Fee No 360 No 5
15 0.021% 0.010% 0.010% Fee/Leasehold No 360 No 5
16 0.041% 0.020% 0.020% Fee No 0 No 0
17 0.041% 0.020% 0.020% Fee No 0 No 5
18 0.041% 0.020% 0.020% Fee No 0 No 0
19 0.041% 0.020% 0.020% Fee No 0 No 0
20 0.041% 0.020% 0.020% Fee No 0 No 0
21 0.041% 0.020% 0.020% Fee No 0 No 0
22 0.041% 0.020% 0.020% Fee No 0 No 5
23 0.041% 0.020% 0.020% Fee No 0 No 0
24 0.041% 0.020% 0.020% Fee No 360 No 5
25 0.041% 0.020% 0.020% Fee/Leasehold No 0 No 5
25.1 Leasehold
25.2 Fee
25.3 Fee
25.4 Fee
26 0.041% 0.020% 0.020% Fee No 0 No 0
27 0.041% 0.020% 0.020% Fee No 0 No 0
28 0.021% 0.010% 0.010% Fee No 0 No 5
29 0.041% 0.020% 0.020% Leasehold No 360 No 5
30 0.021% 0.010% 0.010% Fee No 0 No 0
31 0.061% 0.040% 0.020% Fee No 360 No 5
32 0.041% 0.020% 0.020% Fee No 360 No 0
32.1 Fee
32.2 Fee
32.3 Fee
32.4 Fee
32.5 Fee
32.6 Fee
32.7 Fee
32.8 Fee
33 0.041% 0.020% 0.020% Fee No 360 No 5
34 0.041% 0.020% 0.020% Fee No 360 No 5
35 0.021% 0.010% 0.010% Fee No 0 No 0
36 0.041% 0.020% 0.020% Fee No 0 No 5
37 0.041% 0.020% 0.020% Fee No 360 No 5
38 0.021% 0.010% 0.010% Fee No 0 No 0
39 0.041% 0.020% 0.020% Fee No 0 No 5
40 0.071% 0.050% 0.020% Fee No 360 No 5
41 0.041% 0.020% 0.020% Fee No 360 No 5
42 0.021% 0.010% 0.010% Fee No 0 No 5
43 0.041% 0.020% 0.020% Fee No 0 No 0
44 0.021% 0.010% 0.010% Fee No 0 No 5
45 0.041% 0.020% 0.020% Fee No 360 No 5
45.1 Fee
45.2 Fee
46 0.041% 0.020% 0.020% Fee No 360 No 5
47 0.041% 0.020% 0.020% Fee No 0 No 0
48 0.041% 0.020% 0.020% Fee No 360 No 5
49 0.071% 0.050% 0.020% Fee No 360 No 5
50 0.041% 0.020% 0.020% Fee No 360 No 5
51 0.041% 0.020% 0.020% Fee No 360 No 5
52 0.041% 0.020% 0.020% Fee No 0 No 5
53 0.041% 0.020% 0.020% Fee No 0 No 5
54 0.021% 0.010% 0.010% Fee No 360 No 0
55 0.041% 0.020% 0.020% Fee No 360 No 5
56 0.041% 0.020% 0.020% Fee No 0 No 5
57 0.041% 0.020% 0.020% Fee No 0 No 5
58 0.041% 0.020% 0.020% Fee No 0 No 0
59 0.041% 0.020% 0.020% Fee No 0 No 5
60 0.041% 0.020% 0.020% Fee No 360 No 5
61 0.041% 0.020% 0.020% Fee No 0 No 0
62 0.041% 0.020% 0.020% Fee No 0 No 7
63 0.041% 0.020% 0.020% Fee No 0 No 5
64 0.041% 0.020% 0.020% Fee No 360 No 0
65 0.041% 0.020% 0.020% Fee No 360 No 0
66 0.041% 0.020% 0.020% Fee No 0 No 7
67 0.041% 0.020% 0.020% Fee No 0 No 7
68 0.041% 0.020% 0.020% Fee No 0 No 5
69 0.041% 0.020% 0.020% Fee No 0 No 5
70 0.071% 0.050% 0.020% Fee No 360 No 5
71 0.021% 0.010% 0.010% Fee No 360 No 0
72 0.041% 0.020% 0.020% Fee No 0 No 5
73 0.041% 0.020% 0.020% Fee No 0 No 5
74 0.021% 0.010% 0.010% Fee No 360 No 0
74.1 Fee
74.2 Fee
75 0.021% 0.010% 0.010% Fee No 360 No 0
75.1 Fee
75.2 Fee
76 0.041% 0.020% 0.020% Fee No 336 No 5
77 0.041% 0.020% 0.020% Fee No 360 No 5
78 0.041% 0.020% 0.020% Fee No 360 No 5
79 0.041% 0.020% 0.020% Fee No 0 No 5
80 0.021% 0.010% 0.010% Fee No 360 No 0
81 0.041% 0.020% 0.020% Fee No 0 No 5
82 0.071% 0.050% 0.020% Fee No 360 No 5
83 0.041% 0.020% 0.020% Fee No 0 No 5
84 0.071% 0.050% 0.020% Fee No 360 No 5
85 0.041% 0.020% 0.020% Fee No 0 No 5
86 0.041% 0.020% 0.020% Fee No 360 No 5
87 0.041% 0.020% 0.020% Fee No 0 No 5
88 0.041% 0.020% 0.020% Fee No 0 No 5
89 0.041% 0.020% 0.020% Fee No 0 No 5
90 0.041% 0.020% 0.020% Fee No 360 No 5
91 0.041% 0.020% 0.020% Fee No 0 No 5
92 0.021% 0.010% 0.010% Fee No 360 No 0
93 0.041% 0.020% 0.020% Fee No 0 No 5
94 0.041% 0.020% 0.020% Fee No 360 No 5
95 0.041% 0.020% 0.020% Fee No 360 No 5
96 0.041% 0.020% 0.020% Fee No 360 No 15
97 0.041% 0.020% 0.020% Fee No 360 No 5
98 0.041% 0.020% 0.020% Fee No 360 No 5
99 0.041% 0.020% 0.020% Fee No 360 No 5
100 0.041% 0.020% 0.020% Fee No 0 No 5
101 0.041% 0.020% 0.020% Fee No 360 No 5
102 0.041% 0.020% 0.020% Fee No 360 No 5
103 0.041% 0.020% 0.020% Fee No 360 No 5
104 0.041% 0.020% 0.020% Fee No 0 No 5
105 0.041% 0.020% 0.020% Fee No 0 No 5
106 0.041% 0.020% 0.020% Fee No 0 No 15
107 0.021% 0.010% 0.010% Fee No 360 No 0
108 0.041% 0.020% 0.020% Fee No 360 No 5
109 0.041% 0.020% 0.020% Fee No 0 No 5
110 0.021% 0.010% 0.010% Fee No 0 No 0
111 0.071% 0.050% 0.020% Fee No 360 No 5
112 0.041% 0.020% 0.020% Fee No 0 No 5
113 0.041% 0.020% 0.020% Fee No 360 No 5
114 0.021% 0.010% 0.010% Fee No 0 No 0
115 0.021% 0.010% 0.010% Fee No 0 No 0
116 0.041% 0.020% 0.020% Fee No 0 No 5
117 0.071% 0.050% 0.020% Fee No 360 No 5
118 0.041% 0.020% 0.020% Leasehold No 360 No 5
119 0.041% 0.020% 0.020% Fee Yes 360 No 5
120 0.041% 0.020% 0.020% Fee Yes 360 No 5
121 0.041% 0.020% 0.020% Fee No 360 No 5
122 0.101% 0.080% 0.020% Fee No 300 No 5
123 0.041% 0.020% 0.020% Fee No 360 No 5
124 0.041% 0.020% 0.020% Fee No 300 No 5
125 0.101% 0.080% 0.020% Fee No 300 No 5
126 0.021% 0.010% 0.010% Fee No 0 No 0
127 0.071% 0.050% 0.020% Fee No 360 No 5
128 0.041% 0.020% 0.020% Fee No 360 No 5
129 0.041% 0.020% 0.020% Fee No 360 No 5
130 0.041% 0.020% 0.020% Fee No 360 No 5
131 0.041% 0.020% 0.020% Fee No 360 No 5
132 0.101% 0.080% 0.020% Fee No 360 No 5
133 0.021% 0.010% 0.010% Fee No 0 No 0
134 0.041% 0.020% 0.020% Fee No 360 No 5
135 0.041% 0.020% 0.020% Fee No 360 No 5
136 0.041% 0.020% 0.020% Fee No 360 No 5
137 0.041% 0.020% 0.020% Fee No 360 No 5
138 0.041% 0.020% 0.020% Fee No 0 No 5
139 0.041% 0.020% 0.020% Fee No 360 No 5
140 0.041% 0.020% 0.020% Fee No 300 No 5
141 0.041% 0.020% 0.020% Fee No 0 No 5
142 0.041% 0.020% 0.020% Fee No 300 No 5
143 0.041% 0.020% 0.020% Fee No 360 No 5
144 0.041% 0.020% 0.020% Fee No 0 No 5
145 0.041% 0.020% 0.020% Fee No 0 No 5
146 0.041% 0.020% 0.020% Leasehold No 360 No 5
147 0.041% 0.020% 0.020% Fee No 360 No 7
148 0.041% 0.020% 0.020% Fee No 360 No 5
149 0.041% 0.020% 0.020% Fee No 360 No 5
150 0.041% 0.020% 0.020% Fee No 360 No 5
151 0.041% 0.020% 0.020% Fee No 300 No 5
Sequence Loan Group
-------- ----------
1 2
2 1
3 1
4 1
5 1
6 2
6.1 2
6.2 2
6.3 2
6.4 2
6.5 2
6.6 2
6.7 2
7 1
8 1
9 1
9.1 1
9.2 1
9.3 1
9.4 1
9.5 1
9.6 1
9.7 1
9.8 1
9.9 1
9.10 1
10 1
10.1 1
10.2 1
10.3 1
10.4 1
10.5 1
11 1
12 1
13 1
14 1
15 1
16 1
17 2
18 1
19 1
20 1
21 1
22 1
23 1
24 1
25 1
25.1 1
25.2 1
25.3 1
25.4 1
26 1
27 1
28 1
29 1
30 1
31 1
32 1
32.1 1
32.2 1
32.3 1
32.4 1
32.5 1
32.6 1
32.7 1
32.8 1
33 1
34 1
35 2
36 1
37 1
38 1
39 1
40 1
41 1
42 1
43 1
44 2
45 2
45.1 2
45.2 2
46 1
47 1
48 1
49 1
50 1
51 1
52 1
53 1
54 1
55 1
56 1
57 1
58 1
59 1
60 1
61 1
62 1
63 2
64 1
65 1
66 1
67 1
68 1
69 1
70 1
71 1
72 1
73 1
74 1
74.1 1
74.2 1
75 1
75.1 1
75.2 1
76 1
77 2
78 1
79 1
80 2
81 1
82 1
83 1
84 1
85 2
86 1
87 1
88 1
89 1
90 1
91 1
92 1
93 1
94 1
95 1
96 1
97 1
98 1
99 1
100 1
101 1
102 1
103 1
104 1
105 1
106 1
107 1
108 2
109 1
110 2
111 1
112 1
113 1
114 1
115 1
116 1
117 1
118 1
119 1
120 1
121 1
122 1
123 1
124 2
125 1
126 2
127 1
128 2
129 1
130 1
131 1
132 1
133 1
134 1
135 2
136 2
137 1
138 1
139 1
140 1
141 1
142 1
143 1
144 1
145 1
146 1
147 1
148 1
149 1
150 1
151 1
SCHEDULE II
Sub-Servicing Agreements in Effect as of the Closing Date
1. Sub-Servicing Agreement, dated as of July 1, 2007, by and between
BANK OF AMERICA, NATIONAL ASSOCIATION, as Master Servicer, and XXXXXXXX XXXXXXXX
XXXXXX, X.X., as Sub-Servicer.
2. Sub-Servicing Agreement, dated as of July 1, 2007, by and between
BANK OF AMERICA, NATIONAL ASSOCIATION, as Master Servicer, and HYPO REAL ESTATE
CAPITAL CORPORATION, as Sub-Servicer.
3. Sub-Servicing Agreement, dated as of July 1, 2007 by and between
BANK OF AMERICA, NATIONAL ASSOCIATION, as Master Servicer, and MIDLAND LOAN
SERVICES, INC., as Sub-Servicer.
4. Sub-Servicing Agreement, dated as of July 1, 2007 by and between
BANK OF AMERICA, NATIONAL ASSOCIATION., as Master Servicer, and SUNTRUST BANK,
as Sub-Servicer.
5. Sub-Servicing Agreement, dated as of July 1, 2007, by and between
BANK OF AMERICA, NATIONAL ASSOCIATION, as Master Servicer, and WACHOVIA BANK,
NATIONAL ASSOCIATION, as Sub-Servicer.
6. Sub-Servicing Agreement, dated as of July 1, 2007 by and between
BANK OF AMERICA, NATIONAL ASSOCIATION., as Master Servicer, LAUREATE CAPITAL
LLC, CBRE MELODY OF TEXAS, LP, and NORTHMARQ CAPITAL, INC., as Sub-Servicers.
SCHEDULE III
Schedule of Exceptions under Section 2.02(a)
------------ ---------------------------- ---------- -------------- --------- ----------- --------------- -----------------------
Collateral Investor Exception
ID Property Name ID Loan Amount DocType Exception Description Notation
------------ ---------------------------- ---------- -------------- --------- ----------- --------------- -----------------------
1120073 Metropolis Shopping Center HRECC 86,000,000.00 ALN1 01 MISSING @RECEIVED COPY, NEED
ORIGINAL; HRECC TO
HPFU
------------ ---------------------------- ---------- -------------- --------- ----------- --------------- -----------------------
1520073 CG (Championsgate) Golf Euro 50,000,000.00 ALNV 01 MISSING EURO TO BLANK
LLC & Omni-Championsgate
Resort Hotel
------------ ---------------------------- ---------- -------------- --------- ----------- --------------- -----------------------
2820073 000 Xxxxxxx Xxxxxx SPE Euro 22,000,000.00 ALNV 01 MISSING EURO TO BLANK
Owner LLC
------------ ---------------------------- ---------- -------------- --------- ----------- --------------- -----------------------
5420073 NEW 375 BVALE LLC Euro 10,600,000.00 ALNV 46 LOAN NOTE:
REFERENCE $10,600,000.00;
MISSING/ ALLONGE:
INCORRECT $9,000,000.00
------------ ---------------------------- ---------- -------------- --------- ----------- --------------- -----------------------
LOAN
REFERENCE NOTE: $5,100,000.00;
000-000 X 000XX ST. MISSING/ ALLONGE:
11020073 HOLDINGS LP Euro 5,100,000.00 ALNV 46 INCORRECT $5,000,000.00
------------ ---------------------------- ---------- -------------- --------- ----------- --------------- -----------------------
SCHEDULE IV
[Reserved]
SCHEDULE V
Mortgage Loans that Initially Pay Interest Only
-----------------------------------------------------------------------------------------------------------------------------------
Loan Number Property Name Loan Transaction Cut-off Balance Amortization Type IO Period
-----------------------------------------------------------------------------------------------------------------------------------
3406070 Presidential Towers BACM 07-3 325,000,000 Interest Only 120
101 Renaissance Mayflower Hotel BACM 07-3 200,000,000 Interest Only 60
3405209 One Park Avenue BACM 07-3 187,500,000 Interest Only 60
3406713 Pacific Shores Building 9 & 10 BACM 07-3 183,750,000 Interest Only 120
104 Xxxxxxxx Xxxx Multifamily Portfolio BACM 07-3 175,000,000 Interest Only 60
3406386 Hilton Anatole BACM 07-3 175,000,000 Interest Only 120
3406646 Second & Seneca BACM 07-3 175,000,000 Interest Only 120
3406563 Pacifica Tower BACM 07-3 166,250,000 Interest Only 126
100 HPI - GSA Portfolio BACM 07-3 125,000,000 Interest Only 120
200 JQH Hotel Portfolio BACM 07-3 100,000,000 Interest Only 120
102 Metropolis Shopping Center BACM 07-3 86,000,000 Interest Only 84
300 Xxxxxx Xxxxx 3 BACM 07-3 58,400,000 Interest Only 60
3405751 Marketplace at Mill Creek BACM 07-3 57,307,446 Interest Only 120
400 ChampionsGate Hotel BACM 07-3 50,000,000 IO, Balloon 24
3400017 Cascade Village Phase I BACM 07-3 50,000,000 IO, Balloon 60
3405766 Overlook at King of Prussia BACM 07-3 47,065,383 Interest Only 120
3405845 The Heights on West Campus BACM 07-3 37,750,000 Interest Only 120
3405753 Xxxxxxx Bay Commons BACM 07-3 37,680,787 Interest Only 120
3405768 Xxxxx Pavilion BACM 07-3 37,609,248 Interest Only 120
3405754 Stonecrest Marketplace BACM 07-3 34,515,625 Interest Only 120
3405755 Woodstock Square BACM 07-3 29,006,478 Interest Only 120
3405961 00 Xxxxx Xxxxxx XXXX 00-0 28,100,000 Interest Only 84
3405756 Boynton Commons BACM 07-3 27,854,444 Interest Only 120
23582 Yuba City Marketplace BACM 07-3 27,000,000 IO, Balloon 120
3405932 Philly Self Storage Portfolio BACM 07-3 25,620,000 Interest Only 120
3405772 Bartow Marketplace BACM 07-3 23,297,527 Interest Only 120
3405773 Gateway Market Center BACM 07-3 23,172,886 Interest Only 120
500 252 7th Ave BACM 07-3 22,000,000 Interest Only 120
3404645 One Main Plaza BACM 07-3 21,700,000 IO, Balloon 48
000 Xxxxxxxxx Xxxxxxx BACM 07-3 21,450,000 Interest Only 120
3406314 00000 Xxxxxxx Xxxxxx BACM 07-3 19,800,000 IO, Balloon 39
3403893 Empire Self Storage Portfolio BACM 07-3 19,000,000 IO, Balloon 60
3404734 00xx & Xxxxxx Xxxxxxx Garage BACM 07-3 18,500,000 IO, Balloon 60
3404317 Airway Properties BACM 07-3 17,700,000 IO, Balloon 36
000 Xxxxxxxxx Xxxxx BACM 07-3 17,300,000 Interest Only 60
3405700 Xxxxx'x at the Parkway BACM 07-3 17,000,000 IO, Balloon 60
3406182 Belk II BACM 07-3 17,000,000 Interest Only 120
800 Garin Ranch BACM 07-3 16,750,000 Interest Only 60
3405457 Xxxxxxx Centre South BACM 07-3 16,133,156 Interest Only 120
59758 Montecito Marketplace BACM 07-3 16,000,000 IO, Balloon 24
20953 North Park Business Park Portfolio 3 BACM 07-3 15,915,000 IO, Balloon 60
900 1001-1007 Third Ave BACM 07-3 15,000,000 Interest Only 60
3405759 Market Place BACM 07-3 14,649,463 Interest Only 120
1000 Argosy Apartments BACM 07-3 14,000,000 Interest Only 60
3402392 Xxxxx Pavilion II BACM 07-3 13,700,000 IO, Balloon 60
3405760 Xxxxxxxx Central BACM 07-3 13,653,259 Interest Only 120
3404871 Xxxxxx Valley Business Park BACM 07-3 12,100,000 IO, Balloon 60
3405887 Xxxxxxxxx Electric BACM 07-3 11,000,000 Interest Only 60
3405454 Heritage Heights BACM 07-3 10,719,085 Interest Only 120
1100 000 Xxxxxxxxxxx Xxxxxx BACM 07-3 10,600,000 IO, Balloon 60
22651 The Shops at Dove Valley Ranch BACM 07-3 10,300,000 IO, Balloon 36
3405684 Crown Distributing Headquarters BACM 07-3 10,200,000 Interest Only 120
3405449 Xxxxxx Creek BACM 07-3 10,148,677 Interest Only 120
3405776 Paradise Place BACM 07-3 10,148,501 Interest Only 120
3405466 Riverview Village BACM 07-3 10,120,995 Interest Only 120
3402090 Marlboro Self Storage BACM 07-3 10,100,000 IO, Balloon 36
3405762 Gateway Plaza - Jacksonville BACM 07-3 10,098,326 Interest Only 120
9000655 ezStorage Corp. - Ruxton BACM 07-3 10,060,000 Interest Only 120
3406322 000-000 Xxxxxx Xxxxxx BACM 07-3 10,050,000 Interest Only 120
3406266 0000 Xxxxxxxx Xxxxxxxxx BACM 07-3 10,000,000 IO, Balloon 60
3405691 655 Engineering BACM 07-3 9,900,000 IO, Balloon 60
9000658 ezStorage Corp. - Xxxx Burnie BACM 07-3 9,890,000 Interest Only 120
9000606 ezStorage Corp. - Xxxxxx BACM 07-3 9,870,000 Interest Only 120
3405458 Hunters Xxxx Crossing BACM 07-3 9,789,751 Interest Only 120
3405456 The Highlands BACM 07-3 9,745,034 Interest Only 120
3401449 Fubonn Shopping Center BACM 07-3 9,500,000 IO, Balloon 36
1200 Aspen Gardens BACM 07-3 9,440,000 IO, Balloon 60
3405460 Xxxxx Xxxx BACM 07-3 9,346,170 Interest Only 120
90001059 R Street Storage BACM 07-3 9,100,000 Interest Only 60
1300 Huntsville Office & Retail Portfolio BACM 07-3 9,000,000 IO, Balloon 36
1400 Xxxxxxx BACM 07-3 9,000,000 IO, Balloon 60
22442 Alpine Village Apartments BACM 07-3 8,500,000 IO, Balloon 36
3400184 The Store Room - Pompano Beach BACM 07-3 8,458,398 IO, Balloon 12
3405459 Xxxxxxxx Crossing BACM 07-3 8,434,692 Interest Only 120
1500 Bella Vista Apartments BACM 07-3 8,400,000 IO, Balloon 24
3405451 Flower Mound Crossing BACM 07-3 8,341,692 Interest Only 120
3405447 Cross Timbers Court BACM 07-3 8,192,687 Interest Only 120
3405077 Banco Plaza BACM 07-3 8,000,000 IO, Balloon 24
3406097 23-25 & 00-00 Xxxx 000xx Xxxxxx BACM 07-3 8,000,000 Interest Only 84
3405888 Market at Xxxxx BACM 07-3 7,892,542 Interest Only 60
3405452 Xxxx Xxxxxx BACM 07-3 7,721,653 Interest Only 120
3405445 14th Street Market BACM 07-3 7,711,759 Interest Only 120
3404899 El Xxxxxxx Center BACM 07-3 7,600,000 IO, Balloon 36
3405462 Park West Plaza BACM 07-3 7,531,973 Interest Only 120
9000504 Hampton Inn Gainesville BACM 07-3 7,500,000 IO, Balloon 60
1600 00 Xxxxx Xxxxx XXXX 00-0 7,500,000 IO, Balloon 60
3404238 000 Xxxxxxxx Xxxxxx Extension BACM 07-3 7,500,000 Interest Only 120
3402757 Sierra Xxxxxxx Plaza BACM 07-3 7,300,000 IO, Balloon 60
23127 Old Port Buildings BACM 07-3 7,300,000 IO, Balloon 60
3405448 East Gate BACM 07-3 6,800,038 Interest Only 120
3406643 Old Peachtree Commons BACM 07-3 6,684,000 IO, Balloon 60
3405455 Fury's Ferry BACM 07-3 6,380,929 Interest Only 120
3405450 Bellerive Plaza BACM 07-3 6,092,460 Interest Only 120
3405879 Shallotte Commons BACM 07-3 6,077,500 Interest Only 60
1700 Convention Center Garage BACM 07-3 6,000,000 IO, Balloon 60
3405667 La Xxxxx Xxxxxxxx Xxxxxx - Xxxx X XXXX 00-0 5,500,000 Interest Only 120
1800 000-000 Xxxx 000xx Xxxxxx XXXX 00-0 5,100,000 Interest Only 60
3405461 Market at Westlake BACM 07-3 4,802,876 Interest Only 120
1900 5661-5669 Broadway BACM 07-3 4,600,000 Interest Only 120
2000 1701 Lake Xxxxxxx Drive BACM 07-3 4,600,000 Interest Only 120
3406000 Capitol Distributors BACM 07-3 4,560,000 Interest Only 120
3403007 Walgreens-Broadway BACM 07-3 4,500,000 IO, Balloon 24
19512 Central Self-Storage Lafayette BACM 07-3 4,500,000 IO, Balloon 60
00000 Xxxx Xxxx Xxxxxx BACM 07-3 4,282,500 IO, Balloon 72
0000 Xxxxxx Xxxxxx BACM 07-3 4,200,000 Interest Only 60
3406597 Briarwood Shopping Village BACM 07-3 3,900,000 IO, Balloon 36
2200 00 X Xxxx Xxxxxx BACM 07-3 3,500,000 Interest Only 120
90001289 All American Self Storage BACM 07-3 3,400,000 IO, Balloon 24
3405465 Shiloh Square BACM 07-3 3,238,160 Interest Only 120
22322 ChemTreat Building BACM 07-3 3,220,000 IO, Balloon 36
3405463 Suncreek Village BACM 07-3 2,683,331 Interest Only 120
3405446 Xxxxxxxx Plaza BACM 07-3 2,314,703 Interest Only 120
3404557 Dexter Magnetic Technologies - Hicksville NY BACM 07-3 2,300,000 IO, Balloon 36
3405464 Pioneer Plaza BACM 07-3 2,250,179 Interest Only 120
3404556 Dexter Magnetic Technologies - Elk Grove, IL BACM 07-3 2,200,000 IO, Balloon 36
-------------------------------------------------------------
Loan Number Loan Group % of Loan Group % of Pool
-------------------------------------------------------------
3406070 2 50.2% 9.2%
101 1 7.0% 5.7%
3405209 1 6.5% 5.3%
3406713 1 6.4% 5.2%
104 2 27.0% 5.0%
3406386 1 6.1% 5.0%
3406646 1 6.1% 5.0%
3406563 1 5.8% 4.7%
100 1 4.4% 3.6%
200 1 3.5% 2.8%
102 1 3.0% 2.4%
300 1 2.0% 1.7%
3405751 1 2.0% 1.6%
400 1 1.7% 1.4%
3400017 1 1.7% 1.4%
3405766 1 1.6% 1.3%
3405845 2 5.8% 1.1%
3405753 1 1.3% 1.1%
3405768 1 1.3% 1.1%
3405754 1 1.2% 1.0%
3405755 1 1.0% 0.8%
3405961 1 1.0% 0.8%
3405756 1 1.0% 0.8%
23582 1 0.9% 0.8%
3405932 1 0.9% 0.7%
3405772 1 0.8% 0.7%
3405773 1 0.8% 0.7%
500 1 0.8% 0.6%
3404645 1 0.8% 0.6%
600 1 0.7% 0.6%
3406314 1 0.7% 0.6%
3403893 1 0.7% 0.5%
3404734 1 0.6% 0.5%
3404317 1 0.6% 0.5%
700 2 2.7% 0.5%
3405700 1 0.6% 0.5%
3406182 1 0.6% 0.5%
800 1 0.6% 0.5%
3405457 1 0.6% 0.5%
59758 1 0.6% 0.5%
20953 1 0.6% 0.5%
900 1 0.5% 0.4%
3405759 1 0.5% 0.4%
1000 2 2.2% 0.4%
3402392 1 0.5% 0.4%
3405760 1 0.5% 0.4%
3404871 1 0.4% 0.3%
3405887 1 0.4% 0.3%
3405454 1 0.4% 0.3%
1100 1 0.4% 0.3%
22651 1 0.4% 0.3%
3405684 1 0.4% 0.3%
3405449 1 0.4% 0.3%
3405776 1 0.4% 0.3%
3405466 1 0.4% 0.3%
3402090 1 0.4% 0.3%
3405762 1 0.4% 0.3%
9000655 1 0.4% 0.3%
3406322 2 1.6% 0.3%
3406266 1 0.3% 0.3%
3405691 1 0.3% 0.3%
9000658 1 0.3% 0.3%
9000606 1 0.3% 0.3%
3405458 1 0.3% 0.3%
3405456 1 0.3% 0.3%
3401449 1 0.3% 0.3%
1200 1 0.3% 0.3%
3405460 1 0.3% 0.3%
90001059 1 0.3% 0.3%
1300 1 0.3% 0.3%
1400 1 0.3% 0.3%
22442 2 1.3% 0.2%
3400184 1 0.3% 0.2%
3405459 1 0.3% 0.2%
1500 2 1.3% 0.2%
3405451 1 0.3% 0.2%
3405447 1 0.3% 0.2%
3405077 1 0.3% 0.2%
3406097 2 1.2% 0.2%
3405888 1 0.3% 0.2%
3405452 1 0.3% 0.2%
3405445 1 0.3% 0.2%
3404899 1 0.3% 0.2%
3405462 1 0.3% 0.2%
9000504 1 0.3% 0.2%
1600 1 0.3% 0.2%
3404238 1 0.3% 0.2%
3402757 1 0.3% 0.2%
23127 1 0.3% 0.2%
3405448 1 0.2% 0.2%
3406643 1 0.2% 0.2%
3405455 1 0.2% 0.2%
3405450 1 0.2% 0.2%
3405879 1 0.2% 0.2%
1700 1 0.2% 0.2%
3405667 1 0.2% 0.2%
1800 2 0.8% 0.1%
3405461 1 0.2% 0.1%
1900 1 0.2% 0.1%
2000 1 0.2% 0.1%
3406000 1 0.2% 0.1%
3403007 1 0.2% 0.1%
19512 1 0.2% 0.1%
22608 1 0.1% 0.1%
2100 2 0.6% 0.1%
3406597 1 0.1% 0.1%
2200 1 0.1% 0.1%
90001289 1 0.1% 0.1%
3405465 1 0.1% 0.1%
22322 1 0.1% 0.1%
3405463 1 0.1% 0.1%
3405446 1 0.1% 0.1%
3404557 1 0.1% 0.1%
3405464 1 0.1% 0.1%
3404556 1 0.1% 0.1%
SCHEDULE VI
Mortgage Loans Containing Additional Debt
-----------------------------------------------------------------------------------------------------------------------------------
Loan Number Property Name Loan Transaction Cut-off Balance Existing Additional Debt
-----------------------------------------------------------------------------------------------------------------------------------
3405209 One Park Avenue BACM 07-3 187,500,000 Yes
3406386 Hilton Anatole BACM 07-3 175,000,000 Yes
104 Xxxxxxxx Xxxx Multifamily Portfolio BACM 07-3 175,000,000 Yes
3406563 Pacifica Tower BACM 07-3 166,250,000 Yes
200 JQH Hotel Portfolio BACM 07-3 100,000,000 Yes
102 Metropolis Shopping Center BACM 07-3 86,000,000 Yes
400 ChampionsGate Hotel BACM 07-3 50,000,000 Yes
000 Xxxxxxxxx Xxxxx BACM 07-3 17,300,000 Yes
900 0000-0000 Xxxxx Xxx BACM 07-3 15,000,000 Yes
23688 Quietwater Business Park BACM 07-3 4,750,219 Yes
300 Xxxxxx Xxxxx 3 BACM 07-3 58,400,000 No
3405751 Marketplace at Mill Creek BACM 07-3 57,307,446 No
3405766 Overlook at King of Prussia BACM 07-3 47,065,383 No
3405845 The Heights on West Campus BACM 07-3 37,750,000 No
3405753 Xxxxxxx Bay Commons BACM 07-3 37,680,787 No
3405768 Xxxxx Pavilion BACM 07-3 37,609,248 No
3405754 Stonecrest Marketplace BACM 07-3 34,515,625 No
3405755 Woodstock Square BACM 07-3 29,006,478 No
3405756 Boynton Commons BACM 07-3 27,854,444 No
3405772 Bartow Marketplace BACM 07-3 23,297,527 No
3405773 Gateway Market Center BACM 07-3 23,172,886 No
500 252 7th Ave BACM 07-3 22,000,000 No
3404645 One Main Plaza BACM 07-3 21,700,000 No
000 Xxxxxxxxx Xxxxxxx BACM 07-3 21,450,000 No
3403893 Empire Self Storage Portfolio BACM 07-3 19,000,000 No
3404317 Airway Properties BACM 07-3 17,700,000 No
3406182 Belk II BACM 07-3 17,000,000 No
800 Garin Ranch BACM 07-3 16,750,000 No
3405759 Market Place BACM 07-3 14,649,463 No
3404076 Somerset I and II BACM 07-3 13,900,000 No
3405760 Xxxxxxxx Central BACM 07-3 13,653,259 No
3405684 Crown Distributing Headquarters BACM 07-3 10,200,000 No
3405776 Paradise Place BACM 07-3 10,148,501 No
3405762 Gateway Plaza - Jacksonville BACM 07-3 10,098,326 No
3405691 655 Engineering BACM 07-3 9,900,000 No
3405667 La Xxxxx Xxxxxxxx Xxxxxx - Xxxx X XXXX 00-0 5,500,000 No
1800 000-000 Xxxx 000xx Xxxxxx XXXX 00-0 5,100,000 No
3406000 Capitol Distributors BACM 07-3 4,560,000 No
-----------------------------------------------------------------------------------------------------------------------------------
Existing Additional
Loan Number Debt Amount Existing Additional Debt Description
-----------------------------------------------------------------------------------------------------------------------------------
3405209 262,900,000 Pari Passu (187,500,000); Mezzanine (75,400,000)
3406386 195,000,000 Pari Passu (175,000,000); Unsecured (20,000,000)
104 134,711,640 Pari Passu (100,000,000); First Tier Mezzanine (9,711,640); Second Tier Mezzanine (25,000,000)
3406563 17,250,000 B-Note
200 50,000,000 Pari Passu
102 9,000,000 B-Note
400 100,000,000 Pari Passu
700 3,950,000 Mezzanine
900 21,855,052 Unsecured
23688 345,000 Subordinate Secured
300
3405751
3405766
3405845
3405753
3405768
3405754
3405755
3405756
3405772
3405773
500
3404645
600
3403893
3404317
3406182
800
3405759
3404076
3405760
3405684
3405776
3405762
3405691
3405667
1800
3406000
-----------------------------------------------------------------------------------------------------------------------------------
Loan Number Future Debt Permitted? Future Debt Amount Permitted Future Debt Description Loan Group % of Loan Group % of Pool
-----------------------------------------------------------------------------------------------------------------------------------
3405209 Yes 32,600,000 Junior Mezzanine 1 6.5% 5.3%
3406386 Yes LTV <= 80%, DSCR >= 1.80x Mezzanine 1 6.1% 5.0%
104 Yes 32,288,360 Mezzanine 2 27.0% 5.0%
3406563 Yes LTV <= 90%, DSCR >= 1.15x Mezzanine 1 5.8% 4.7%
200 Yes LTV <= 75%, DSCR >= 1.20x Mezzanine 1 3.5% 2.8%
102 Yes LTV <= 90%, DSCR >= 1.05x Mezzanine 1 3.0% 2.4%
400 No 1 1.7% 1.4%
700 No 2 2.7% 0.5%
900 No 1 0.5% 0.4%
23688 No 1 0.2% 0.1%
300 Yes LTV <= 80%, DSCR >= 1.20x Mezzanine 1 2.0% 1.7%
3405751 Yes LTV <= 75%, DSCR >= 1.20x Mezzanine 1 2.0% 1.6%
3405766 Yes LTV <= 75%, DSCR >= 1.20x Mezzanine 1 1.6% 1.3%
3405845 Yes LTV <= 75%, DSCR >= 1.20x Mezzanine 2 5.8% 1.1%
3405753 Yes LTV <= 75%, DSCR >= 1.20x Mezzanine 1 1.3% 1.1%
3405768 Yes LTV <= 75%, DSCR >= 1.20x Mezzanine 1 1.3% 1.1%
3405754 Yes LTV <= 75%, DSCR >= 1.20x Mezzanine 1 1.2% 1.0%
3405755 Yes LTV <= 75%, DSCR >= 1.20x Mezzanine 1 1.0% 0.8%
3405756 Yes LTV <= 75%, DSCR >= 1.20x Mezzanine 1 1.0% 0.8%
3405772 Yes LTV <= 75%, DSCR >= 1.20x Mezzanine 1 0.8% 0.7%
3405773 Yes LTV <= 75%, DSCR >= 1.20x Mezzanine 1 0.8% 0.7%
500 Yes LTV <= 85%, DSCR >= 1.15x Mezzanine 1 0.8% 0.6%
3404645 Yes LTV <= 80%, DSCR >= 1.20x Mezzanine 1 0.8% 0.6%
600 Yes LTV <= 80%, DSCR >= 1.20x Mezzanine 1 0.7% 0.6%
3403893 Yes LTV <= 75%, DSCR >= 1.20x Mezzanine 1 0.7% 0.5%
3404317 Yes LTV <= 80%, DSCR >= 1.20x Mezzanine 1 0.6% 0.5%
3406182 Yes LTV <= 85%, DSCR >= 1.15x Mezzanine 1 0.6% 0.5%
800 Yes LTV <= 85%, DSCR >= 1.20x Junior Mezzanine 1 0.6% 0.5%
3405759 Yes LTV <= 75%, DSCR >= 1.20x Mezzanine 1 0.5% 0.4%
3404076 Yes LTV <= 90%, DSCR >= 1.20x Mezzanine 2 2.1% 0.4%
3405760 Yes LTV <= 75%, DSCR >= 1.20x Mezzanine 1 0.5% 0.4%
3405684 Yes LTV <= 80%, DSCR >= 1.05x Mezzanine 1 0.4% 0.3%
3405776 Yes LTV <= 75%, DSCR >= 1.20x Mezzanine 1 0.4% 0.3%
3405762 Yes LTV <= 75%, DSCR >= 1.20x Mezzanine 1 0.4% 0.3%
3405691 Yes LTV <= 80%, DSCR >= 1.23x Mezzanine 1 0.3% 0.3%
3405667 Yes LTV <= 75%, DSCR >= 1.25x Mezzanine 1 0.2% 0.2%
1800 Yes LTV <= 90%, DSCR >= 1.00x Mezzanine 2 0.8% 0.1%
3406000 Yes LTV <= 80%, DSCR >= 1.05x Mezzanine 1 0.2% 0.1%
SCHEDULE VII
Schedule of Initial Controlling Holders and Operating Advisors
(1) The initial Metropolis Shopping Center Controlling Holder is Anthracite
Capital, Inc., at Anthracite Capital, Inc., 00 Xxxx 00xx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxx and Xxxxxx
Xxxxxx, telecopy number: (000) 000-0000.
(2) The initial Pacifica Tower Controlling Holder is Bank of America, National
Association, at 000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxx, telecopy number: (000) 000-0000
(with copies to Xxxx X. Xxxxxxx, Esq., Assistant General Counsel, at Bank
of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx, 30th Floor,
NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 and to Xxxxx X. XxXxxx,
Esq., Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 28202).
SCHEDULE VIII
Servicing Criteria to be Addressed in Assessment of Compliance
The assessment of compliance to be delivered shall address, at a minimum,
the criteria identified below as "Relevant Servicing Criteria", as such criteria
may be expanded, limited or otherwise updated by the Commission or its staff
(including, without limitation, not requiring delivery of certain of the items
set forth on this schedule based on interpretive guidance relating to Item 1122
of Regulation AB provided by the Commission or its staff:
---------------------------------------------------------------------------------------------------- -------------------
Applicable
Relevant Servicing Criteria Party(ies)
---------------------------------------------------------------------------------------------------- -------------------
Reference Criteria
-------------------- ------------------------------------------------------------------------------- -------------------
General Servicing Considerations
-------------------- -------------------
-------------------- -------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other Trustee
triggers and events of default in accordance with the transaction agreements. Master Servicer
Special Servicer
Primary Servicer
-------------------- -------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, Trustee
policies and procedures are instituted to monitor the third party's Master Servicer
performance and compliance with such servicing activities. Special Servicer
Primary Servicer
-------------------- -------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer N/A
for the mortgage loans are maintained.
-------------------- -------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party Trustee
participating in the servicing function throughout the reporting period in Master Servicer
the amount of coverage required by and otherwise in accordance with the terms Special Servicer
of the transaction agreements. Primary Servicer
-------------------- -------------------
Cash Collection and Administration
-------------------- -------------------
Trustee
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial bank Master Servicer
accounts and related bank clearing accounts no more than two business days Special Servicer
following receipt, or such other number of days specified in the transaction Primary Servicer
agreements.
-------------------- -------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an Trustee
investor are made only by authorized personnel.
-------------------- -------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or Master Servicer
distributions, and any interest or other fees charged for such advances, are (only with
made, reviewed and approved as specified in the transaction agreements. respect to
transactions for
which the related
transaction
agreements
specifically
require it to
advance property
protection or
payments of
interest and/or
principal)
Special Servicer
Trustee
-------------------- -------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or Trustee
accounts established as a form of overcollateralization, are separately Master Servicer
maintained (e.g., with respect to commingling of cash) as set forth in the Special Servicer
transaction agreements. Primary Servicer
-------------------- -------------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository Trustee
institution as set forth in the transaction agreements. For purposes of this Master Servicer
criterion, "federally insured depository institution" with respect to a Special Servicer
foreign financial institution means a foreign financial institution that Primary Servicer
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
-------------------- -------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. Master Servicer
Special Servicer
Trustee
Primary Servicer
-------------------- -------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed Trustee
securities related bank accounts, including custodial accounts and related Master Servicer
bank clearing accounts. These reconciliations are (A) mathematically Special Servicer
accurate; (B) prepared within 30 calendar days after the bank statement Primary Servicer
cutoff date, or such other number of days specified in the transaction
agreements; (C) reviewed and approved by someone other than the person who
prepared the reconciliation; and (D) contain explanations for reconciling
items. These reconciling items are resolved within 90 calendar days of their
original identification, or such other number of days specified in the
transaction agreements.
-------------------- -------------------
Investor Remittances and Reporting
-------------------- -------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are Trustee
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal balance and number of
mortgage loans serviced by the Servicer.
-------------------- -------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with Trustee
timeframes, distribution priority and other terms set forth in the
transaction agreements.
-------------------- -------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to the Trustee
Servicer's investor records, or such other number of days specified in the
transaction agreements.
-------------------- -------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled Trustee
checks, or other form of payment, or custodial bank statements.
-------------------- -------------------
Pool Asset Administration
-------------------- -------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the Trustee
transaction agreements or related mortgage loan documents. Master Servicer
Special Servicer
Primary Servicer
-------------------- -------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the Trustee
transaction agreements.
-------------------- -------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed Trustee
and approved in accordance with any conditions or requirements in the Master Servicer
transaction agreements. Special Servicer
Primary Servicer
-------------------- -------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with Master Servicer
the related mortgage loan documents are posted to the Servicer's obligor Primary Servicer
records maintained no more than two business days after receipt, or such
other number of days specified in the transaction agreements, and allocated
to principal, interest or other items (e.g., escrow) in accordance with the
related mortgage loan documents.
-------------------- -------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the Servicer's Master Servicer
records with respect to an obligor's unpaid principal balance. Primary Servicer
-------------------- -------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage loans Master Servicer
(e.g., loan modifications or re-agings) are made, reviewed and approved by Special Servicer
authorized personnel in accordance with the transaction agreements and Primary Servicer
related pool asset documents.
-------------------- -------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications Special Servicer
and deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the transaction agreements.
-------------------- -------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a Master Servicer
mortgage loan is delinquent in accordance with the transaction agreements. (only for the
Such records are maintained on at least a monthly basis, or such other period period prior to a
specified in the transaction agreements, and describe the entity's activities servicing
in monitoring delinquent mortgage loans including, for example, phone calls, transfer event
letters and payment rescheduling plans in cases where delinquency is deemed (as defined in
temporary (e.g., illness or unemployment). the transaction
agreements))
Special Servicer
Primary Servicer
-------------------- -------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with Master Servicer
variable rates are computed based on the related mortgage loan documents. Primary Servicer
-------------------- -------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts): Master Servicer
(A) such funds are analyzed, in accordance with the obligor's mortgage loan Primary Servicer
documents, on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan documents and state
laws; and (C) such funds are returned to the obligor within 30 calendar days
of full repayment of the related mortgage loans, or such other number of days
specified in the transaction agreements.
-------------------- -------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) are Master Servicer
made on or before the related penalty or expiration dates, as indicated on Primary Servicer
the appropriate bills or notices for such payments, provided that such
support has been received by the servicer at least 30 calendar days prior to
these dates, or such other number of days specified in the transaction
agreements.
-------------------- -------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on Master Servicer
behalf of an obligor are paid from the servicer's funds and not charged to Primary Servicer
the obligor, unless the late payment was due to the obligor's error or
omission.
-------------------- -------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business Master Servicer
days to the obligor's records maintained by the servicer, or such other Primary Servicer
number of days specified in the transaction agreements.
-------------------- -------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and Master Servicer
recorded in accordance with the transaction agreements. Primary Servicer
-------------------- -------------------
1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1) N/A
through (3) or Item 1115 of Regulation AB, is maintained as set forth in the
transaction agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
SCHEDULE IX
Additional Form 10-D Disclosure
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 11.4 of the Pooling and Servicing Agreement to disclose to the
Depositor and the Trustee any information described in the corresponding Form
10-D Item described in the "Item on Form 10-D" column to the extent such party
has actual knowledge (and in the case of financial statements required to be
provided in connection with Item 6 below, possession) of such information (other
than information as to itself).
---------------------------------------------------------- ----------------------------------------------------------
Item on Form 10-D Party Responsible
---------------------------------------------------------- ----------------------------------------------------------
Item 1A: Distribution and Pool Performance Information: o Master Servicer
o Item 1121(a)(13) of Regulation AB o Trustee
---------------------------------------------------------- ----------------------------------------------------------
Item 1B: Distribution and Pool Performance Information: o Trustee
o Item 1121 (a)(14) of Regulation AB o Depositor
---------------------------------------------------------- ----------------------------------------------------------
Item 2: Legal Proceedings: o Master Servicer (as to itself)
o Item 1117 of Regulation AB (to the extent o Special Servicer (as to itself)
material to Certificateholders) o Trustee (as to itself)
o Depositor (as to itself)
o Primary Servicer (as to itself)
o Any other Reporting Servicer (as to itself)
o Trustee/Master Servicer/Depositor/Special Servicer
as to the Trust in the case of the Master Servicer
and Special Servicer, to be reported by the party
controlling such litigation pursuant to Section
3.32.
o Each Seller as sponsor (as defined in Regulation AB)
o Originators under Item 1110 of Regulation AB
o Party under Item 1100(d)(1) of Regulation AB
---------------------------------------------------------- ----------------------------------------------------------
Item 3: Sale of Securities and Use of Proceeds o Depositor
---------------------------------------------------------- ----------------------------------------------------------
Item 4: Defaults Upon Senior Securities o Trustee
---------------------------------------------------------- ----------------------------------------------------------
Item 5: Submission of Matters to a Vote of Security o Trustee
Holders
---------------------------------------------------------- ----------------------------------------------------------
Item 6: Significant Obligors of Pool Assets o Depositor
o Sponsor
o Mortgage Loan Seller
o Master Servicer
o Primary Servicer (as to loans serviced by it)
---------------------------------------------------------- ----------------------------------------------------------
Item 7: Significant Enhancement Provider Information o Depositor
---------------------------------------------------------- ----------------------------------------------------------
Item 8: Other Information (information required to be o Trustee
disclosed on Form 8-K that was not properly disclosed) o Any other party responsible for disclosure items on
Form 8-K
---------------------------------------------------------- ----------------------------------------------------------
Item 9: Exhibits o Depositor
o Master Servicer
o Trustee
o Primary Servicer
---------------------------------------------------------- ----------------------------------------------------------
SCHEDULE X
Additional Form 10-K Disclosure
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 11.5 of the Pooling and Servicing Agreement to disclose to the
Depositor and the Trustee any information described in the corresponding Form
10-K Item described in the "Item on Form 10-K" column to the extent such party
has actual knowledge (and in the case of financial statements required to be
provided in connection with 1112(b) below, possession) of such information
(other than information as to itself).
---------------------------------------------------------- ------------------------------------------------------------
Item on Form 10-K Party Responsible
---------------------------------------------------------- ------------------------------------------------------------
Item 1B: Unresolved Staff Comments o Depositor
---------------------------------------------------------- ------------------------------------------------------------
Item 9B: Other Information (information required to be o Trustee
disclosed on Form 8-K that was not properly disclosed) o Any other party responsible for disclosure items on
Form 8-K
---------------------------------------------------------- ------------------------------------------------------------
Item 15: Exhibits, Financial Statement Schedules o Trustee
o Depositor
---------------------------------------------------------- ------------------------------------------------------------
Additional Item: o Master Servicer (as to itself)
o Special Servicer (as to itself)
Disclosure per Item 1117 of Regulation AB (to the extent o Trustee (as to itself)
material to Certificateholders) o Depositor (as to itself)
o Primary Servicer (as to itself)
o Any other Reporting Servicer (as to itself)
o Trustee/Master Servicer/Depositor/Special Servicer as
to the Trust in the case of the Master Servicer and
Special Servicer, to be reported by the party
controlling such litigation pursuant to Section 3.32.
o Each Seller as sponsor (as defined in Regulation AB)
o Originators under Item 1110 of Regulation AB
o Party under Item 1100(d)(1) of Regulation AB
---------------------------------------------------------- ------------------------------------------------------------
Additional Item: o Master Servicer (as to itself)
Disclosure per Item 1119 of Regulation AB o Special Servicer (as to itself) (to the extent
material to Certificateholders and only as to
affiliations under 1119(a))
o Trustee (as to itself)
o Depositor (as to itself)
o Primary Servicer (as to itself)
o Trustee/Master Servicer/Depositor/Special Servicer as
to the Trust
o Each Seller as sponsors (as defined in Regulation AB)
o Originators under Item 1110 of Regulation AB
o Party under Item 1100(d)(1) of Regulation AB
---------------------------------------------------------- ------------------------------------------------------------
Additional Item: o Depositor
Disclosure per Item 1112(b) of Regulation AB o Each Seller as sponsor (as defined in Regulation AB)
o Master Servicer
---------------------------------------------------------- ------------------------------------------------------------
Additional Item: o Depositor
Disclosure per Items 1114(b)(2) and 1115(b) of o Master Servicer
Regulation AB
---------------------------------------------------------- ------------------------------------------------------------
SCHEDULE XI
Form 8-K Disclosure Information
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 11.7 of the Pooling and Servicing Agreement to report to the
Depositor and the Trustee the occurrence of any event described in the
corresponding Form 8-K Item described in the "Item on Form 8-K" column to the
extent such party has actual knowledge of such information (other than
information as to itself).
---------------------------------------------------------- --------------------------------------------------------
Item on Form 8-K Party Responsible
---------------------------------------------------------- --------------------------------------------------------
Item 1.01- Entry into a Material Definitive Agreement All parties (only as to the agreements such
entity is a party to or entered into on behalf
of the Trust)
---------------------------------------------------------- --------------------------------------------------------
Item 1.02- Termination of a Material Definitive Agreement All parties (only as to the agreements such
entity is a party to or entered into on behalf of
the Trust)
---------------------------------------------------------- --------------------------------------------------------
Item 1.03- Bankruptcy or Receivership o Depositor
---------------------------------------------------------- --------------------------------------------------------
Item 2.04- Triggering Events that Accelerate or Increase o Depositor
a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement
---------------------------------------------------------- --------------------------------------------------------
Item 3.03- Material Modification to Rights of Security
Holders o Trustee
---------------------------------------------------------- --------------------------------------------------------
Item 5.03- Amendments of Articles of Incorporation or o Depositor
Bylaws; Change of Fiscal Year
---------------------------------------------------------- --------------------------------------------------------
Item 6.01- ABS Informational and Computational Material o Depositor
---------------------------------------------------------- --------------------------------------------------------
Item 6.02- Change of Servicer or Trustee o Master Servicer
o Special Servicer (as to itself or a servicer
retained by it)
o Primary Servicer
o Trustee
o Depositor
---------------------------------------------------------- --------------------------------------------------------
Item 6.03- Change in Credit Enhancement or External o Depositor
Support o Trustee
---------------------------------------------------------- --------------------------------------------------------
Item 6.04- Failure to Make a Required Distribution o Trustee
---------------------------------------------------------- --------------------------------------------------------
Item 6.05- Securities Act Updating Disclosure o Depositor
---------------------------------------------------------- --------------------------------------------------------
Item 7.01- Regulation FD Disclosure o Depositor
---------------------------------------------------------- --------------------------------------------------------
Item 8.01 o Depositor
---------------------------------------------------------- --------------------------------------------------------
Item 9.01 o Depositor
o Master Servicer
o Primary Servicer
---------------------------------------------------------- --------------------------------------------------------
SCHEDULE XII
Form of Additional Disclosure Notification
**SEND VIA FAX TO (000) 000-0000 AND VIA OVERNIGHT MAIL TO XXXXX FARGO
AND BANK OF AMERICA AT THE ADDRESSES IMMEDIATELY BELOW**
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Services (CMBS), Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 0000-0
Xxxx xx Xxxxxxx Commercial Mortgage Inc.
000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [ ] of the pooling and servicing
agreement, dated as of July 1, 2007 (the "Pooling and Servicing Agreement"), by
and among Banc of America Commercial Mortgage Inc. (the "Company"), as
depositor, Bank of America, National Association, as master servicer, LNR
Partners, Inc., as Special Servicer, and Xxxxx Fargo Bank, N.A., as Trustee and
REMIC Administrator. The undersigned, as [ ], hereby notifies you that certain
events have come to our attention that [will] [may] need to be disclosed on Form
[10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
------------------------------------------------------------
List of any Attachments hereto to be included in the Additional Form
--------------------------------------------------------------------
[10-D][10-K][8-K] Disclosure:
-----------------------------
Any inquiries related to this notification should be directed to
[ ], phone number: [ ]; email address: [ ].
[NAME OF PARTY],
as [role]
By:
-------------------------------
Name:
Title:
cc: Depositor
