EXHIBIT 99.5
BANK OF AMERICA, NATIONAL ASSOCIATION
Master Servicer
and
HYPO REAL ESTATE CAPITAL CORPORATION
Sub-Servicer
SUB-SERVICING AGREEMENT
Dated as of July 1, 0000
Xxxx xx Xxxxxxx Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-3
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.....................................................
ARTICLE II
MASTER SERVICER'S ENGAGEMENT OF SUB-SERVICER
TO PERFORM SERVICING RESPONSIBILITIES
Section 2.01 Contract for Servicing; Possession of Mortgage Loan Documents.....
Section 2.02 Letters of Credit.................................................
ARTICLE III
SERVICING OF THE MORTGAGE LOANS
Section 3.01 Sub-Servicer to Service...........................................
Section 3.02 Merger or Consolidation of the Sub-Servicer.......................
Section 3.03 Limitation on Liability of the Sub-Servicer and Others............
Section 3.04 Sub-Servicer's Resignation........................................
Section 3.05 No Transfer or Assignment of Servicing............................
Section 3.06 Indemnification...................................................
Section 3.07 Companion Loans...................................................
Section 3.08 Limited Advancing Obligations.....................................
ARTICLE IV
DEFAULT
Section 4.01 Events of Default.................................................
Section 4.02 Waiver of Defaults................................................
Section 4.03 Other Remedies of Master Servicer.................................
ARTICLE V
TERMINATION
Section 5.01 Termination.......................................................
Section 5.02 Termination of Duties with Respect to Specially Serviced Loans....
ARTICLE VI
MISCELLANEOUS
Section 6.01 Successor to the Sub-Servicer.....................................
Section 6.02 Financial Statements..............................................
Section 6.03 Closing...........................................................
Section 6.04 Closing Documents.................................................
Section 6.05 Notices...........................................................
Section 6.06 Severability Clause...............................................
Section 6.07 Counterparts......................................................
Section 6.08 Governing Law.....................................................
Section 6.09 [Reserved]........................................................
Section 6.10 Intention of the Parties..........................................
Section 6.11 Third Party Beneficiary...........................................
Section 6.12 Successors and Assigns; Assignment of Agreement...................
Section 6.13 Waivers...........................................................
Section 6.14 Exhibits..........................................................
Section 6.15 General Interpretive Principles...................................
Section 6.16 Complete Agreement................................................
Section 6.17 Further Agreement.................................................
Section 6.18 Amendments........................................................
EXHIBIT A MORTGAGE LOAN SCHEDULE...........................................
EXHIBIT B SUB-SERVICER'S OFFICER'S CERTIFICATE.............................
EXHIBIT C POOLING AND SERVICING AGREEMENT..................................
EXHIBIT D FORM OF ADDITIONAL REPORTS.......................................
EXHIBIT E FORM OF ACCOUNT CERTIFICATION....................................
EXHIBIT F FORM OF COLLECTION REPORT........................................
EXHIBIT G FORM OF CERTIFICATION............................................
EXHIBIT H FORM OF SEMI-ANNUAL SERVICER CERTIFICATION.......................
This is a Sub-Servicing Agreement (the "Agreement"), dated as of
July 1, 2007, by and between BANK OF AMERICA, NATIONAL ASSOCIATION, having an
office at 000 Xxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx Xxxxxxxx, 00000
("Master Servicer") and HYPO REAL ESTATE CAPITAL CORPORATION, having an office
at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Sub-Servicer").
W I T N E S S E T H:
--------------------
WHEREAS, BANC OF AMERICA COMMERCIAL MORTGAGE INC. (the "Depositor"),
MIDLAND LOAN SERVICES, INC., (the "Special Servicer") XXXXX FARGO BANK, N.A.
(the "Trustee" and "REMIC Administrator") and the Master Servicer have entered
into that certain Pooling and Servicing Agreement dated as of July 1, 2007, as
amended, modified and restated from time to time (the "Pooling and Servicing
Agreement"), whereby the Master Servicer shall master service certain mortgage
loans on behalf of the Trustee;
WHEREAS, Section 3.22 of the Pooling and Servicing Agreement permits
the Master Servicer to enter into agreements with Sub-Servicers (as defined in
the Pooling and Servicing Agreement) for the sub-servicing of the Mortgage Loans
(as defined in the Pooling and Servicing Agreement); and
WHEREAS, the Master Servicer desires to enter into a contract with
the Sub-Servicer whereby the Sub-Servicer shall service certain of such mortgage
loans listed on Exhibit A (the "Mortgage Loan Schedule") attached hereto
(collectively, the "Mortgage Loans") on behalf of the Master Servicer; and
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Master Servicer and
the Sub-Servicer hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Unless otherwise specified in this Agreement, all capitalized terms
not otherwise defined herein shall have the meanings set forth in the Pooling
and Servicing Agreement. As used herein, the following terms have the meanings
assigned to them in this Section 1.01:
"Available Distribution Amount": With respect to any date, an amount
equal to, without duplication, (a) the sum of (i) the aggregate of the amounts
on deposit in the Sub-Servicer Custodial Account as of such date, (ii) if and to
the extent not included in the amount referred to in subclause (a)(i), the
aggregate amount transferred from the REO Account (if established) to the
Sub-Servicer as of such date to the extent not previously remitted to the Master
Servicer, (iii) the aggregate of all other amounts received with respect to any
Mortgage Loan as of such date to the extent not previously remitted to the
Master Servicer net of (b) the portion of the amount described in subclause (a)
of this definition that represents one or more of the following: (1) Escrow
Payments, (2) Reserve Funds, (3) (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 and (iii) any Prepayment Premiums received after
the end of the related Collection Period or (4) any amounts that the
Sub-Servicer is entitled to retain as compensation pursuant to Section 3.11 of
the Pooling and Servicing Agreement as incorporated herein pursuant to Section
3.01(c)(23) and (24) of this Agreement and (iv) the aggregate amounts deposited
by the Sub-Servicer in the Sub-Servicer Custodial Account as required pursuant
to Section 3.01(c)(31) of this Agreement, to the extent not previously remitted
to the Master Servicer.
"Collection Report": The monthly reports prepared by the
Sub-Servicer setting forth, with respect to each Mortgage Loan serviced by the
Sub-Servicer and the most recently ended Collection Period prior to the due date
of such report, the information described on Exhibit F attached hereto.
"Mortgage Loans": As defined in the recitals hereto.
"Mortgage Loan Schedule": As defined in the recitals hereto.
"Sub-Servicer Custodial Account": The account established by the
Sub-Servicer pursuant to Section 3.01(c)(9) of this Agreement.
"Sub-Servicing Fee": With respect to the Mortgage Loans, related
Specially Serviced Loans and any related REO Serviced Loan, the fee payable to
the Sub-Servicer pursuant to Section 3.01(c)(23) of this Agreement.
"Sub-Servicing Fee Rate": With respect to each Mortgage Loan, the
rate that corresponds to such Mortgage Loan set forth on Exhibit A attached
hereto under the heading "Sub-Servicing Fee Rate."
"Sub-Servicer Remittance Date": The second Business Day preceding
such Distribution Date.
"Sub-Servicer Reporting Date": The third Business Day preceding such
Distribution Date (but in any event no sooner than the Business Day after the
Determination Date).
ARTICLE II
MASTER SERVICER'S ENGAGEMENT OF SUB-SERVICER
TO PERFORM SERVICING RESPONSIBILITIES
Section 2.01 Contract for Servicing; Possession of Mortgage Loan
Documents.
The Master Servicer, by execution and delivery of this Agreement,
does hereby contract with the Sub-Servicer, subject to the terms of this
Agreement, for the servicing of the Mortgage Loans. On and after the Closing
Date, the Sub-Servicer shall hold (for each Mortgage Loan serviced by the
Sub-Servicer) any portion of the Servicing File (including without limitation,
any original letter of credit to the extent such letter of credit has been
delivered to the Sub-Servicer) or the Mortgage File in the possession of the
Sub-Servicer in trust by the Sub-Servicer, on behalf of the Master Servicer for
the benefit of the Trustee. The Sub-Servicer's possession of any portion of the
Servicing File or the Mortgage File shall be at the will of the Master Servicer
and the Trustee for the sole purpose of facilitating the servicing or the
supervision of servicing of the related Mortgage Loan pursuant to this
Agreement, and such retention and possession by the Sub-Servicer shall be in a
custodial capacity only. Any portion of the Servicing File or the Mortgage File
retained by the Sub-Servicer shall be identified to reflect clearly the
ownership of the related Mortgage Loan by the Trustee. The Sub-Servicer shall
release from its custody any Mortgage File retained by it only in accordance
with this Agreement and the Pooling and Servicing Agreement.
Section 2.02 Letters of Credit.
Within twenty (20) days following the Closing Date, the Sub-Servicer
shall provide to the Master Servicer a certification executed by a duly
authorized officer of the Sub-Servicer, certifying to the Master Servicer as to
the original letters of credit held by the Sub-Servicer, to the extent such
letter of credit has been delivered to the Sub-Servicer, and identifying the
letters of credit, the amounts of the letters of credit and the Mortgage Loans
to which they relate, and provide a copy of any such letters of credit to the
Master Servicer pursuant to Section 3.22(h) of the Pooling and Servicing
Agreement.
Within sixty (60) days after the Closing Date, the Sub-Servicer
shall notify each provider of a Letter of Credit for any Mortgage Loan, and
provide the Master Servicer with evidence thereof, that the Master Servicer, on
behalf of the Trustee for the benefit of the Certificateholders, shall be the
beneficiary under each such Letter of Credit, or if the beneficiary has not been
changed, provide the Master Servicer with the notice sent to the Letter of
Credit provider and cooperate with the reasonable direction of the Master
Servicer to effectuate the transfer.
ARTICLE III
SERVICING OF THE MORTGAGE LOANS
Section 3.01 Sub-Servicer to Service.
(a) The Sub-Servicer, as an independent contractor, shall service
and administer pursuant to this Agreement on behalf of the Master Servicer and
the Trustee in the best interests of and for the benefit of the
Certificateholders, in accordance with any and all applicable laws and the terms
of this Agreement and the Mortgage Loans and to the extent consistent with the
foregoing with the Servicing Standard under the Pooling and Servicing Agreement.
For the avoidance of doubt, the Sub-Servicer's obligations and rights under this
Agreement are expressly limited to the Mortgage Loans which are sub-serviced by
the Sub-Servicer as set forth in Exhibit A.
(b) The Sub-Servicer shall perform, on behalf of the Master
Servicer, all of the obligations of the Master Servicer (with respect to the
Mortgage Loans subject to this Agreement) as set forth in those sections of the
Pooling and Servicing Agreement incorporated herein pursuant to Section 3.01(c)
of this Agreement (the "Incorporated Sections"), as modified by Section 3.01(c)
of this Agreement, and the Master Servicer shall have the same rights with
respect to the Sub-Servicer that the Trustee, the Depositor, the Underwriters,
the Directing Certificateholder, the Rating Agencies, and the Certificateholders
(including, without limitation, the right of the Special Servicer to direct the
Master Servicer during certain periods) have with respect to the Master Servicer
under the Pooling and Servicing Agreement to the extent that the Sub-Servicer is
acting on behalf of the Master Servicer hereunder and except as otherwise set
forth herein. Without limiting the foregoing, and subject to Section 3.21 of the
Pooling and Servicing Agreement as modified herein, the Sub-Servicer shall
service and administer all Mortgage Loans that are not Specially Serviced Loans;
provided, however, that the Sub-Servicer shall, under instruction from the
Special Servicer or the Master Servicer, continue to collect and apply payments
(and provide notice to the Special Servicer of such payments), deliver certain
statements and documents requested by the Special Servicer regarding information
held by the Sub-Servicer and continue to cooperate with the Special Servicer and
the Master Servicer by providing requested information regarding the servicing
of all Mortgage Loans that are Specially Serviced Loans. All references herein
to the respective duties of the Sub-Servicer and the Special Servicer, and to
the areas in which they may exercise discretion, shall be subject to Section
3.21 and Section 3.22 of the Pooling and Servicing Agreement, as modified herein
and to the Special Servicer's right to service all Specially Serviced Loans.
Except as otherwise set forth below, for purposes of this Agreement, references
to the Trustee, the Depositor, the Underwriters, the Rating Agencies, and the
Certificateholders in the Incorporated Sections shall be deemed to be references
to the Master Servicer hereunder and references to the Master Servicer in the
Incorporated Sections shall be deemed to be references to the Sub-Servicer
hereunder (such modification of the Incorporated Sections shall be referred to
herein as the "References Modification"). For the avoidance of doubt, when a
particular section of the Pooling and Servicing Agreement is incorporated
herein, unless otherwise expressly stated, the duties of the Master Servicer
under such section are incorporated herein to the Sub-Servicer (i.e. even if
there is additional language in the related section regarding the duties of the
Sub-Servicer).
(c) The following sections or subsections of the Pooling and
Servicing Agreement listed herein and only such sections or subsections, unless
otherwise provided in this Section 3.01(c) of this Agreement, are hereby
incorporated herein by reference as if fully set forth herein, and, for purposes
of this Agreement, in addition to the References Modification, are hereby
further modified as set forth below (and to avoid any doubt, any modification is
limited to its specific terms and the section is otherwise fully incorporated
herein without limitation):
(1) Section 2.03(a). The Sub-Servicer shall promptly notify the
Master Servicer upon becoming aware of any breach of the representations
and warranties made by the related Mortgage Loan Seller in connection (but
only in connection) with those Mortgage Loans that the Sub-Servicer is
required to sub-service hereunder as set forth on Exhibit A attached
hereto.
(2) Sections 2.06(a), (b) and (c). References to the Special
Servicer shall be deemed to be references to the Sub-Servicer. The
Sub-Servicer represents and warrants that it is duly organized, validity
existing and in good standing as a corporation under the laws of the State
of Delaware. The Sub-Servicer represents and warrants that it is
authorized to transact business in each state in which a Mortgaged
Property is located, if and to the extent required by applicable law,
where failure to qualify would have a material and adverse effect on the
ability of the Sub-Servicer to perform its obligations hereunder.
(3) Section 3.01(a), (b) and (c). The Sub-Servicer shall take all
necessary action to continue all UCC Financing Statements (including all
in-lieu continuations, as applicable) in favor of the originator of each
Mortgage Loan or in favor of any assignee prior to the expiration of such
UCC Financing Statements.
(4) Sections 3.02(a) and (b). The Sub-Servicer shall send the notice
regarding Balloon Payments required under Section 3.02 of the Pooling and
Servicing Agreement with a copy to the Master Servicer.
(5) Section 3.03(a). The creation of any Servicing Account shall be
evidenced by a certification in the form of Exhibit E attached hereto and
a copy of such certification shall be furnished to the Master Servicer
upon the creation of and any transfer of the Servicing Account.
(6) Section 3.03(b). Without limiting the generality of the
obligations of the Sub-Servicer hereunder, the Sub-Servicer shall monitor
and report to the Master Servicer on a quarterly basis starting for the
quarter ending in September of 2007 on the 30th of the month following the
end of each calendar quarter the information on each Mortgage Loan it
services with respect to taxes, insurance premiums, assessments, ground
rents and other similar items as required by, and in the form of, Exhibit
D attached hereto. The Sub-Servicer shall not be obligated to make any
Servicing Advances, except as described in the next following sentence.
The Sub-Servicer shall give the Master Servicer not less than five (5)
Business Days' notice before the date on which the Master Servicer is
required to make any Servicing Advance with respect to any Mortgage Loan
the Sub-Servicer services; provided, however, that, with respect to any
Servicing Advance required to be made on an urgent or emergency basis such
that the Sub-Servicer is unable to provide the Master Servicer with
sufficient notice to enable the Master Servicer to make such Servicing
Advance, the Sub-Servicer shall make such Servicing Advance and the Master
Servicer shall reimburse the Sub-Servicer for such Servicing Advance
within five (5) Business Days of receipt of written request therefor and
interest thereon at the Reimbursement Rate. In addition, the Sub-Servicer
shall provide the Master Servicer with such information in its possession
as the Master Servicer may reasonably request to enable the Master
Servicer to determine whether a requested Servicing Advance would
constitute a Nonrecoverable Servicing Advance.
(7) Section 3.03(d). The creation of any Reserve Account shall be
evidenced by a certification in the form of Exhibit E attached hereto and
a copy of such certification shall be furnished to the Master Servicer on
or prior to the Closing Date and thereafter to the Master Servicer upon
any transfer of the Reserve Account.
(8) Section 3.03(e). The applicable Sub-Servicer shall request the
written confirmations required by the first two sentences of Section
3.03(e). In the final two sentences of Section 3.03(e) the Sub-Servicer
shall send the information required to be sent by the Master Servicer to
the Special Servicer, with a copy to the Master Servicer.
(9) Section 3.04(a). The Sub-Servicer shall establish a custodial
account (the "Sub-Servicer Custodial Account"), meeting all of the
requirements of the Certificate Account, and references to the Certificate
Account shall be references to the Sub-Servicer Custodial Account. The
creation of the Sub-Servicer Custodial Account shall be evidenced by a
certification in the form of Exhibit E attached hereto and a copy of such
certification shall be furnished to the Master Servicer on or prior to the
Closing Date and thereafter to the Master Servicer upon any transfer of
the Sub-Servicer Custodial Account. For purposes of the last paragraph of
Section 3.04(a), the Master Servicer shall direct the Special Servicer to
make payment of amounts referenced therein directly to the Sub-Servicer
for deposit in the Sub-Servicer Custodial Account.
(10) Section 3.04(b). References to the Certificate Account shall be
references to the Sub-Servicer Custodial Account, references to the
Distribution Account shall be references to the Certificate Account,
references to Master Servicer Remittance Amount shall be references to
Available Distribution Amount and references to the Master Servicer
Remittance Date shall be references to the Sub-Servicer Remittance Date.
Each remittance required to be made to the Master Servicer on the
Sub-Servicer Remittance Date shall be made by wire transfer or such other
form that provides for immediate delivery (with evidence of such delivery)
and shall be made by 2:00 p.m. Charlotte, North Carolina Time on such
date. Each month, by 2:00 p.m. Charlotte, North Carolina Time on the first
Business Day after receipt of any Available Distribution Amount between
the Sub-Servicer Remittance Date and the Distribution Date, the
Sub-Servicer shall forward to the Master Servicer by wire transfer or such
other form that provides for immediate delivery (with evidence of such
delivery) the Available Distribution Amount for such date. Each month by
2:00 p.m. Charlotte, North Carolina Time, on the first Business Day after
receipt of any amounts which constitute delinquent payments on the
Mortgage Loans and any related late fees or penalty interest (excluding
any amounts to which the Sub-Servicer is entitled to as compensation
pursuant to Section 3.11 of the Pooling and Servicing Agreement as
incorporated herein pursuant to Sections 3.01(c)(23), (24) and (38) of
this Agreement) that the Sub-Servicer is not required to remit to the
Master Servicer pursuant to the previous sentence, the Sub-Servicer shall
forward to the Master Servicer by wire transfer all or such other form
that provides for immediate delivery (with evidence of such delivery) such
amounts collected by the Sub-Servicer and not previously remitted to the
Master Servicer. Section 3.01(c)(39) of this Agreement sets forth certain
reporting requirements with respect to such remittances. Subsections (i)
and (iii) of the third paragraph of Section 3.04(b) of the Pooling and
Servicing Agreement are not incorporated herein. If any check or other
form of payment received by the Sub-Servicer with respect to the Mortgage
Loans is returned for insufficient funds and the Sub-Servicer has
previously remitted cash in the amount of such payment to the Master
Servicer, the Master Servicer shall reimburse the Sub-Servicer for such
amount within five (5) Business Days after the Master Servicer receives
notification from the Sub-Servicer of such insufficient funds, and the
Sub-Servicer has provided the Master Servicer with any requested
information to identify such payment and sent a revised Collection Report
to reflect such returned check.
(11) Section 3.04(d). The Sub-Servicer shall only invest funds held
in the Sub-Servicer Custodial Account in Permitted Investments. The
Sub-Servicer shall give notice to the Master Servicer of the location of
the Sub-Servicer Custodial Account as of the Closing Date and of the new
location of the Sub-Servicer Custodial Account prior to any change
thereof.
(12) Section 3.04(e). The Sub-Servicer shall establish a custodial
account (the "Sub-Servicer Whole Loan Custodial Account"), meeting all of
the requirements of the Serviced Whole Loan Custodial Account, and
references to the Serviced Whole Loan Custodial Account shall be
references to the Sub-Servicer Whole Loan Custodial Account. The creation
of the Sub-Servicer Whole Loan Custodial Account shall be evidenced by a
certification in the form of Exhibit E attached hereto and a copy of such
certification shall be furnished to the Master Servicer on or prior to the
Closing Date and thereafter to the Master Servicer upon any transfer of
the Sub-Servicer Whole Loan Custodial Account. For purposes of the second
to last paragraph of Section 3.04(e), the Master Servicer shall direct
each Special Servicer to make payment of amounts referenced therein
directly to the Sub-Servicer for deposit in the Sub-Servicer Whole Loan
Custodial Account. The Sub-Servicer shall only invest funds held in the
Sub-Servicer Whole Loan Custodial Account in Permitted Investments. The
Sub-Servicer shall give notice to the Master Servicer of the location of
the Sub-Servicer Whole Loan Custodial Account as of the Closing Date and
of the new location of the Sub-Servicer Whole Loan Custodial Account prior
to any change thereof.
(13) Section 3.05. Section 3.05 is not incorporated herein. The
Sub-Servicer may, from time to time, make withdrawals from the
Sub-Servicer Custodial 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 Master Servicer for deposit in the
Certificate Account the amounts required to be so deposited pursuant
to the first paragraph and clause (ii) of the third paragraph of
Section 3.04(b) of the Pooling and Servicing Agreement and Section
3.01(c)(10) of this Agreement;
(ii) to pay to itself earned and unpaid Sub-Servicing Fees in
accordance with Section 3.01(c)(23) of this Agreement and Section
3.11(a) of the Pooling and Servicing Agreement in respect of each
Mortgage Loan and REO Serviced Loan, the Sub-Servicer's right to
payment pursuant to this clause (ii) with respect to any Mortgage
Loan or REO Serviced Loan 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 Serviced Loan (whether in the form
of REO Revenues, Liquidation Proceeds or Insurance Proceeds) that
are allocable as a recovery of interest thereon;
(iii) to pay to itself additional servicing compensation in
accordance with Section 3.01(c)(24) of this Agreement and Section
3.11(b) of the Pooling and Servicing Agreement, including interest
and investment income earned in respect of amounts held in its
Sub-Servicer Custodial Account as provided in Section 3.01(c)(24) of
this Agreement, but only to the extent of the Net Investment
Earnings with respect to its Sub-Servicer Custodial Account for any
Collection Period;
(iv) to clear and terminate its Sub-Servicer Custodial Account
at the termination of this Agreement pursuant to Section 9.01 of the
Pooling and Servicing Agreement, as modified herein; and
(v) any amounts deposited in the Sub-Servicer Custodial
Account in error.
The Sub-Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis when appropriate, in connection
with any withdrawal from its Sub-Servicer Custodial Account pursuant
to clauses (ii) and (iii) above.
The Sub-Servicer may, from time to time, make withdrawals from the
Sub-Servicer 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 remit to the holder of any related Companion Loan
amounts so required to be remitted to or pursuant to the related co-lender
agreement and/or the Pooling and Servicing Agreement.
(ii) to the Master Servicer for deposit in the Certificate
Account the amounts required to be so deposited pursuant to the first
paragraph and clause (ii) of the third paragraph of Section 3.04(b) of the
Pooling and Servicing Agreement and Section 3.10(c)(9) of this Agreement;
(iii) to pay to itself earned and unpaid Sub-Servicing Fees
(which are the fees payable as compensation to the Sub-Servicer) in
accordance with Section 3.01(c)(23) of this Agreement and Section 3.11(a)
of the Pooling and Servicing Agreement in respect of the related Whole
Loan and related REO Loans, the Sub-Servicer's right to payment pursuant
to this clause (ii) with respect to the related Whole Loan and related REO
Loan being payable from, and limited to, amounts received on or in respect
of the related Whole Loan (whether in form of payments, Liquidation
Proceeds or Insurance Proceeds) or such related 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 itself additional servicing compensation in
accordance with Section 3.01(c)(24) of this Agreement and Section 3.11(b)
of the Pooling and Servicing Agreement, including interest and investment
income earned in respect of amounts held in its Sub-Servicer Whole Loan
Custodial Account as provided in Section 3.01(c)(24) of this Agreement,
but only to the extent of the Net Investment Earnings with respect to its
Sub-Servicer Whole Loan Custodial Account for any Due Period;
(v) to clear and terminate its Sub-Servicer Whole Loan
Custodial Account at the termination of this Agreement pursuant to Section
9.01 of the Pooling and Servicing Agreement, as modified herein; and
(vi) any amounts deposited in the Sub-Servicer Whole Loan
Custodial Account in error.
The Sub-Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis when appropriate, in connection with any
withdrawal from its Sub-Servicer Whole Loan Custodial Account pursuant to the
immediately above clauses (ii) and (iii) above.
(14) Sections 3.06(a), (c) and (d) are not incorporated herein. The
Sub-Servicer may invest funds in its Sub-Servicer Custodial Account on the
same terms as the Master Servicer may invest funds in the Certificate
Account, and subject to the same restrictions and obligations regarding
maturity dates, holding to maturity dates, gains, losses, possession of
Permitted Investments and Permitted Investments payable on demand. Without
limiting the generality of the foregoing, (A) any investment of funds in
the Sub-Servicer Custodial Account shall be made in the name of the
Trustee for the benefit of the Certificateholders (in its capacity as
such) and (B) the Master Servicer, on behalf of the Trustee, 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 3.01(c)(14), the terms "entitlement holder,"
"security entitlement," "control," "certificated security" and
"uncertificated security" shall have the meanings given such terms in
Article 8 of the UCC, and "control" of any Permitted Investment by the
Sub-Servicer shall constitute "control" by a Person designated by, and
acting on behalf of, the Trustee for purposes of Article 8 of the UCC.
(15) Section 3.06(b). References to the Certificate Account shall be
references to the Sub-Servicer Custodial Account. References to the
Trustee shall be inapplicable to the Sub-Servicer. References to the
Special Servicer and the REO Account are inapplicable to the Sub-Servicer.
(16) Section 3.07(a). References to the Certificate Account shall be
references to the Sub-Servicer Custodial Account. All insurance policies
caused to be maintained by the Sub-Servicer hereunder shall also name the
Master Servicer as additional insured and loss payee; the Master Servicer
shall designate in writing to the Sub-Servicer how its name shall appear.
The Sub-Servicer may request the Master Servicer to pay the premiums for
such insurance policies if payments from the Borrower are insufficient,
and the Master Servicer shall make such premium payments as Servicing
Advances pursuant to Section 3.03(a) of the Pooling and Servicing
Agreement. Without limiting the generality of the obligations of the
Sub-Servicer hereunder, the Sub-Servicer shall monitor and report to the
Master Servicer on a quarterly basis starting for the quarter ending in
September of 2007 on the 30th of the month following the end of each
calendar quarter on the status of insurance policies and monitor the
information relating to the Mortgage Loans as required by, and in the form
of, Exhibit D attached hereto, pursuant to Section 3.01(c)(39) of this
Agreement. The Master Servicer shall remain responsible for any
consultation with the Special Servicer relating to any determination
whether the related Mortgage Loan documents permit the lender to require
the Mortgagor to maintain insurance policies covering some or all of the
risks contained in the Additional Exclusions, and the Sub-Servicer shall
reasonably cooperate with the Master Servicer in connection therewith.
(17) Section 3.07(b). References to the Certificate Account shall be
references to the Sub-Servicer Custodial Account.
(18) Sections 3.07(c). The fidelity bond and errors and omissions
insurance policies required hereunder shall also name the Master Servicer
as additional insured; the Master Servicer shall designate in writing to
the Sub-Servicer how its name shall appear. The Sub-Servicer shall provide
a certificate of insurance to the Master Servicer evidencing fidelity bond
and insurance coverage required hereunder on or before March 31 of each
year, beginning March 31, 2008.
(19) Section 3.08. Section 3.08 is incorporated herein with the
following modifications. The Sub-Servicer shall forward an
assumption/transfer package (including without limitation, materials
including case analysis and written recommendation)to the Master Servicer,
and the Sub-Servicer shall not permit an assumption of the Mortgage Loans
or subordinate financing without the prior written consent of the Master
Servicer. The Master Servicer shall forward any such package that requires
the consent of the Special Servicer and/or the Rating Agencies promptly to
the Special Servicer, Directing Certificateholder and/or the Rating
Agencies, as the case may be, but in any event within ten (10) Business
Days of its initial receipt from the Sub-Servicer. The Master Servicer
shall notify the Sub-Servicer in writing if it determines that such
assumption/transfer documentation package is incomplete (and what items
are needed to complete the assumption/transfer documentation package)
within five (5) Business Days from its initial receipt of an
assumption/transfer documentation package relating to a Mortgage Loan not
requiring Rating Agency, Directing Certificateholder or Special Servicer's
review, and as promptly as reasonably possible if such assumption/transfer
documentation package relating to the Mortgage Loans requiring Rating
Agency, Directing Certificateholder or Special Servicer review is found by
the Rating Agencies, Directing Certificateholder and/or the Special
Servicer to be incomplete. The Sub-Servicer agrees to cooperate with the
Special Servicer, Directing Certificateholder and/or the Rating Agencies,
as the case may be, to provide to each of them, the information that each
of them may request pursuant to Section 3.08 of the Pooling and Servicing
Agreement in connection with their consent and/or review. The Master
Servicer shall notify the Sub-Servicer in writing of its decision to
consent (or withhold consent) to an assumption within fifteen (15)
Business Days from receipt of a complete assumption/transfer documentation
package from the Sub-Servicer on the Mortgage Loans not requiring Rating
Agency, Directing Certificateholder or Special Servicer review, and as
promptly as reasonably possible on the Mortgage Loans requiring Rating
Agency, Directing Certificateholder or Special Servicer review.
(20) [Reserved].
(21) Section 3.09(c) is incorporated herein. To the extent that the
Sub-Servicer is performing any function under this Agreement with respect
to a Mortgage Loan that is a Specially Serviced Loan, the Sub-Servicer
shall take no action that would cause the Trustee to initiate foreclosure
proceedings, 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, 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.
(22) Section 3.10. References to the Certificate Account shall be
references to the Sub-Servicer Custodial Account. No expense incurred in
connection with any instrument of satisfaction or deed of reconveyance
shall be chargeable to the Sub-Servicer Custodial Account. To the extent
that the Sub-Servicer corresponds with the Trustee the Sub-Servicer shall
promptly remit to the Master Servicer copies of all written communications
between it and the Trustee with respect to the Mortgage Loans. It is
acknowledged and agreed that unless otherwise directed by the Master
Servicer, the Sub-Servicer shall only interact with the Master Servicer
under Section 3.10 of the Pooling and Servicing Agreement.
(23) Section 3.11(a). References to the Master Servicing Fee shall
be references to the Sub-Servicing Fee and references to the Master
Servicing Fee Rate shall be references to the Sub-Servicing Fee Rate.
(24) Section 3.11(b). All references to the Investment Accounts
shall be references to the Sub-Servicer Custodial Account, the
Sub-Servicer Whole Loan Custodial Account, Escrow Accounts and Reserve
Accounts maintained by the Sub-Servicer. Any late payment or other fees
(including Default Interest) paid in respect of a delinquent loan to which
the Master Servicer is entitled under the Pooling and Servicing Agreement
(other than as payment of interest on Advances) shall be paid to the
applicable Sub-Servicer. The Sub-Servicer and the Master Servicer shall
each be allocated 50% of any modification fees, assumption fees,
application fees, consent fees or other fees or charges in connection with
an assumption, modification or consent request, collected with respect to
the Mortgage Loans to the extent that the Master Servicer is entitled to
such fees or charges under the Pooling and Servicing Agreement.
(25) Section 3.11(d). To the extent the amounts described in Section
3.11(d)(ii) of the Pooling and Servicing Agreement are collected by the
Sub-Servicer, the Sub-Servicer shall promptly pay such amounts to the
Master Servicer.
(26) Sections 3.12(a) and (b). The Sub-Servicer shall promptly (but
in no event later than twenty-five (25) days after the related inspection
or collection, as applicable) forward to the Master Servicer an electronic
copy of all inspection reports received by the Sub-Servicer including
digital copies of any photographs included therein and all operating
statements and rent rolls collected by the Sub-Servicer. The Sub-Servicer
in connection with the reports that it prepares in connection with Section
3.12(a) and (b)of the Pooling and Servicing Agreement will afford the
Master Servicer reasonable cooperation by providing such information as
the Master Servicer may request in connection with the Master Servicer's
responsibilities in Section 3.12(a) and (b) of the Pooling and Servicing
Agreement. The Sub-Servicer shall prepare the CMSA Operating Statement and
Analysis Report and the CMSA NOI Adjustment Worksheet in the standard CMSA
format and deliver them electronically to the Master Servicer.
(27) [Reserved].
(28) [Reserved].
(29) Section 3.15. With respect to the Mortgage Loans serviced
hereunder, the Sub-Servicer shall fulfill all of the obligations of the
Master Servicer required pursuant to Section 3.15 and Section 6.05 of the
Pooling and Servicing Agreement as if the Sub-Servicer were the Master
Servicer thereunder; provided, however, that the Sub-Servicer shall not be
required to make available information or reports prepared by or entered
into by the Special Servicer to the extent such information and reports
are not in the possession of the Sub-Servicer. Upon reasonable prior
notice, the Sub-Servicer shall provide to the Master Servicer access to
its books and records related to the servicing of the Mortgage Loans
serviced hereunder (including, at the option of the Master Servicer, an
on-site review).
(30) Sections 3.19(a), (b), (c), (f), (g), (h), (i) and (j).
References in the last sentence of the first paragraph of Section 3.19(a)
to the "Master Servicer" and the "Special Servicer" shall remain the
Master Servicer and Special Servicer, respectively. Section 3.19(b) shall
be inapplicable to the Sub-Servicer. With respect to Section 3.19(b), the
Master Servicer shall provide to the Sub-Servicer any report prepared by
the Special Servicer with respect to a related Companion Loan to the
extent that such report then in the actual possession of the Master
Servicer.
As to Section 3.19(c), the Sub-Servicer shall deliver Appraisals to
the Master Servicer which are obtained with respect to any Mortgaged Property or
REO Property; in addition, the Sub-Servicer shall deliver copies of the
environmental and engineering reports referenced in this subsection (c) as
otherwise directed by the Master Servicer to designated Persons.
As to Section 3.19(f), without the consent of the Master Servicer,
the Sub-Servicer shall not consent to any Principal Prepayment, partially or in
its entirety, if the Mortgagor would be prohibited from making such Principal
Prepayment without such consent.
Section 3.19(g) shall be deemed modified to not allow any action by
the Sub-Servicer thereunder without the prior written consent of the Master
Servicer.
As to Section 3.19(h), the Sub-Servicer shall send written notice to
each Borrower to the effect that, if applicable, the Master Servicer, the
Sub-Servicer and/or the Trustee have been appointed as the "designee" of the
lender under any related Lock-Box Account.
As to Section 3.19(i), the Sub-Servicer shall promptly forward all
requests for Principal Prepayments to the Master Servicer, along with a payoff
statement (with respect to each Principal Prepayment request) setting forth the
amount of the necessary Principal Prepayment and Prepayment Premiums calculated
by the Sub-Servicer.
As to Section 3.19(j), the Sub-Servicer shall forward a copy of any
notice required by Section 3.19(j) to the Master Servicer.
(31) Section 3.19(e). Section 3.19(e) of the Pooling and Servicing
Agreement is incorporated herein with the following modifications.
References to Maser Servicer Remittance Amount shall be references to
Available Distribution Amount. The Sub-Servicer shall deliver the
Compensating Interest Payment called for in Section 3.19(e) of the Pooling
and Servicing Agreement on the Sub-Servicer Remittance Date in an amount
equal to the sum of (i) the lesser of (A) the aggregate amount of
Prepayment Interest Shortfalls, if any, incurred in connection with
Principal Prepayments received in respect of those Mortgage Loans serviced
by the Sub-Servicer under this Agreement (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 Sub-Servicing Fees for
the related Collection Period that is, in the case of each and every
Mortgage Loan serviced by the Sub-Servicer under this Agreement for which
such Sub-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 those Mortgage Loans serviced by the Sub-Servicer
under this Agreement during the most recently ended Collection Period,
plus (ii) 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 Available Distribution
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 Sub-Servicer Custodial Account.
Notwithstanding the foregoing, the Sub-Servicer shall have no obligation
to deposit any Prepayment Interest Shortfall with respect to any Principal
Prepayment for which the Master Servicer or the Special Servicer waived
the requirement under the related Mortgage or the related Mortgage Note
that the Mortgagor pay interest through and including the first Due Date
following the date of the Principal Prepayment.
(32) Section 3.20. Except as set provided below with respect to
Section 3.20(g) of the Pooling and Servicing Agreement, the Sub-Servicer
will not permit a modification, waiver or amendment with respect to the
Mortgage Loans except with the written consent of the Master Servicer
which consent will be deemed granted if the Master Servicer does not
respond to the Sub-Servicer's request (such request to include such
appropriate written materials including case analysis and written
recommendations) for such consent within ten (10) Business Days of the
request of the Sub-Servicer. The Master Servicer shall forward any such
package that requires the consent of the Special Servicer, Directing
Certificateholder and/or Rating Agencies promptly to the Special Servicer,
Directing Certificateholder and/or Rating Agencies, as the case may be,
but in any event within ten (10) Business Days of its initial receipt from
the Sub-Servicer. With respect to Section 3.20(g) of the Pooling and
Servicing Agreement, the Sub-Servicer shall be permitted to process
without the consent of the Master Servicer those tasks referenced in
clauses (i) and (iii) of Section 3.20(g). With respect to clause (ii), the
Sub-Servicer shall submit the related action to the Master Servicer. With
respect to clause (iv) the Sub-Servicer shall process without the consent
of the Master Servicer other routine leasing approvals, including the
granting of subordination, non-disturbance and attornment agreements, with
respect to leases (A) where the related lease constitutes lesser than the
less of (x) 10% of the total square footage of the related Mortgaged
Property and (y) 15,000 total square feet, (B) that would be considered
"at market rates" (i.e. the space is being leased at rates which are not
materially above or materially below the rates that would be offered by
similarly situated properties where the Mortgaged Property is located in
the reasonable judgment of a commercially prudent commercial mortgage loan
servicer) and (C) that are not ground leases
(33) Section 3.21(a). The Sub-Servicer shall immediately notify the
Master Servicer of any event or circumstance that the Sub-Servicer deems
to constitute a Servicing Transfer Event with respect to any Mortgage
Loan. The determination as to whether a Servicing Transfer Event has
occurred shall be made by the Master Servicer or the Special Servicer. For
avoidance of doubt, the Master Servicer shall be responsible for providing
notification of transfer to the Special Servicer, as required under the
Pooling and Servicing Agreement. Upon receipt by the Master Servicer of
notice from the Special Servicer that a Specially Serviced Loan has become
a Corrected Mortgage Loan, the Master Servicer shall promptly give the
Sub-Servicer notice thereof and the obligation of the Sub-Servicer to
service and administer such Mortgage Loan shall resume, and the Master
Servicer shall reasonably cooperate with the Sub-Servicer to permit the
Sub-Servicer to resume its duties and obligations hereunder. The
Sub-Servicer shall continue to accrue its Sub-Servicing Fee with respect
to any Mortgage Loan that has become a Specially Serviced Loan.
(34) Section 3.22. References to the Master Servicer shall not be
deemed to be references to the Sub-Servicer for purposes of Section 3.22.
Each and every one of the terms and conditions of Section 3.22 shall be
enforceable against the Sub-Servicer in accordance with the terms thereof
and each requirement for a Sub-Servicing Agreement set forth in Section
3.22 is hereby incorporated into the Agreement. To the extent necessary
for the Sub-Servicer to comply with applicable laws, or if otherwise
consented to by the Master Servicer, the Sub-Servicer may enter into any
sub-servicing agreement with another subservicer that would permit such
subservicer to perform any or all of the Sub-Servicer's servicing
responsibilities under this Agreement. Notwithstanding any sub-servicing
agreement, the Sub-Servicer shall remain obligated and primarily liable to
the Master Servicer for the servicing and administering of the Mortgage
Loans in accordance with the provisions of this Agreement without
diminution of such obligation or liability by virtue of such subservicing
agreement to the same extent and under the same terms and conditions as if
the Sub-Servicer were servicing the Mortgage Loans alone.
(35) Section 3.24. In accordance with such section, the Sub-Servicer
may disseminate general statistical information relating to the mortgage
loan portfolio being serviced by the Sub-Servicer (including the related
Mortgage Loans) so long as the Sub-Servicer does not identify the related
Mortgagors.
(36) Section 3.25. Section 3.25 is incorporated.
(37) Section 3.26. The Master Servicer will process all defeasance
requests and any defeasance of a Mortgage Loan. The Sub-Servicer will
forward any request for defeasance to the Master Servicer within three (3)
Business Days. Notwithstanding the foregoing, the Sub-Servicer shall
interact and have contact with the related Mortgagor but shall use counsel
in connection with any defeasance approved by the Master Servicer.
(38) Section 3.27. The Sub-Servicer shall initially retain all
Default Charges collected in connection with the Mortgage Loans. The
Master Servicer shall notify the Sub-Servicer in a commercially
practicable period of the calculation and the amount of Default Charges
(if any) required to be disbursed pursuant to Section 3.27(a) of the
Pooling and Servicing Agreement with respect to the Mortgage Loans, and
the Sub-Servicer shall remit such amount to the extent that it has
actually collected such amount to the Master Servicer within two (2)
Business Days of the Master Servicer's notice to remit. If the
Sub-Servicer fails to remit such Default Charges in the time period
referenced in the preceding sentence for reasons other than failure by the
related Borrower to pay such amounts, the Sub-Servicer will be required to
remit such Default Charges as received on a going forward basis
thereafter.
(39) Section 4.02(b) is not incorporated herein. The Sub-Servicer
shall deliver to the Master Servicer by electronic transmission in a
format designated by the Master Servicer (with a hard copy upon request
and not later than the Business Day following such request):
a. not later than 1:00 p.m. Charlotte, North Carolina Time on the
Sub-Servicer Reporting Date, the Collection Report, the CMSA Loan
Periodic Update File, the CMSA Property File and the CMSA Delinquent
Loan Status Report, the CMSA Comparative Financial Statement Report,
the CMSA Servicer Watch List Report, the CMSA Loan Level Reserve-LOC
Report and the CMSA Financial File, each providing the required
information as of the related Determination Date;
b. not later than 1:00 p.m., Charlotte, North Carolina Time on the
Sub-Servicer Reporting Date in July (for the months of January
through June) and January (for the months of July through December)
of each year, the information on the Mortgage Loans, including
without limitation information regarding UCC Financing Statements,
taxes, insurance premiums and ground rents, on a semi-annual basis
starting for the period ending in December 2007, in the form of
Exhibit H attached hereto.
The Sub-Servicer shall reasonably cooperate with the Master Servicer
in providing information needed to establish the CMSA Loan Set-up File.
Additionally, within thirty (30) days of the Closing Date on a
quarterly basis starting for the quarter ending in September of 2007 on the 30th
of the month following the end of each calendar quarter, the Sub-Servicer shall
provide all information and reports to the Master Servicer set forth in Exhibit
D in connection with the Mortgage Loans sub-serviced by it under this Agreement.
The Sub-Servicer shall deliver to the Master Servicer on the third
day of each month, unless such date is not a Business Day then in such case, no
later than one Business Day prior to the Determination Date, by 3:00 p.m.
Charlotte, North Carolina Time by electronic transmission in a format designated
by the Master Servicer (with a hard copy upon request and not later than the
fourth day of each month), a remittance report containing scheduled balance
information for each Mortgage Loan reflecting the scheduled Periodic Payment for
such month in the form of Exhibit F attached hereto. In addition, on each day
that the Sub-Servicer forwards to the Master Servicer any funds pursuant to
Section 3.01(c)(10) of this Agreement, the Sub-Servicer shall deliver to the
Master Servicer by electronic transmission in a format designated by the Master
Servicer a report of the nature of such remittance in the form of Exhibit F
attached hereto. The Sub-Servicer shall also prepare and deliver to the Master
Servicer a reconciliation of all collection accounts and servicing accounts for
the calendar month preceding each Determination Date, together with a copy of
the related bank statement within twenty-five (25) days after such Determination
Date.
(40) [Reserved]
(41) Section 11.01. In the second sentence of Section 11.01 of the
Pooling and Servicing Agreement, references to the Depositor and the
Master Servicer shall remain references to each of them. The Sub-Servicer
shall provide any and all good faith cooperation with the Master Servicer
and/or the Depositor to enable them to comply with Regulation AB. For the
avoidance of doubt, the parties hereto acknowledge that the Sub-Servicer
constitutes a Servicing Function Participant and an Additional Servicer
under the Pooling and Servicing Agreement. For the avoidance of doubt, the
Sub-Servicer acknowledges and agrees that it shall perform each and every
obligation of an Additional Servicer and/or a Servicing Function
Participant in the manner and the time frames set forth in the Pooling and
Servicing Agreement.
(42) Section 11.02. Is incorporated herein.
(43) Section 11.03 is not incorporated herein. The Sub-Servicer
shall provide any and all good faith cooperation to the Master Servicer to
enable the Master Servicer to comply with Section 11.03 of the Pooling and
Servicing Agreement, and the Master Servicer shall provide such direction
and notice as may be reasonably required under the circumstances to enable
the Sub-Servicer to provide such cooperation.
(44) Section 11.04 is not incorporated herein. The Sub-Servicer
shall reasonably cooperate with the Master Servicer to enable the Master
Servicer to fulfill all of the obligations of the Master Servicer under
Section 11.04 of the Pooling and Servicing Agreement (including, without
limitation, the preparation of the Additional Form 10-D Disclosure) and
the Master Servicer shall provide such direction and notice as may be
reasonably required under the circumstances to enable the Sub-Servicer to
provide such cooperation.
(45) Section 11.05. The Sub-Servicer shall provide all the reports
required of a Sub-Servicer, Additional Servicer and/or Servicing Function
Participant under Section 11.05 of the Pooling and Servicing Agreement.
The Sub-Servicer shall reasonably cooperate with the Master Servicer to
enable the Master Servicer to provide any Additional Form 10-K Disclosure
and the Master Servicer shall provide such direction and notice as may be
reasonably required under the circumstances to enable the Sub-Servicer to
provide such cooperation. To the extent that a responsible officer of the
Sub-Servicer has actual knowledge of any information that would constitute
Additional Form 10-K Disclosure, the Sub-Servicer shall provide such
information to the Trustee with a copy to the Master Servicer no later
than three (3) Business Days prior to the date when such information is
required to be provided by the Master Servicer under the Pooling and
Servicing Agreement. The Sub-Servicer hereby acknowledges that the purpose
of Section 11.05 of the Pooling Agreement is to facilitate the compliance
by the Depositor with Regulation AB.
(46) Section 11.06 is incorporated herein. So long as the Master
Servicer is obligated under Section 11.06 of the Pooling and Servicing
Agreement to provide a Performance Certification, the Sub-Servicer
covenants to provide a backup certification to the Master Servicer in the
form set forth on Exhibit G hereto, which shall contain certifications
substantially similar to any certification required to be delivered to by
the Master Servicer pursuant to Section 11.06 of the Pooling and Servicing
Agreement and shall provide such further information and assistance as may
be reasonably required to cooperate with the Master Servicer in complying
with the requirements of Section 11.06 of the Pooling and Servicing
Agreement and the Master Servicer shall provide such direction and notice
as may be reasonably required under the circumstances to enable the
Sub-Servicer to provide such cooperation. This certification may be relied
upon by the Master Servicer in performing its obligations under Section
11.06 of the Pooling and Servicing Agreement but may not be otherwise
used, circulated, or relied upon by any person other than the parties set
forth in Section 11.06 of the Pooling and Servicing Agreement.
(47) Section 11.07. The Sub-Servicer shall promptly notify the
Master Servicer to the extent that a responsible officer of the
Sub-Servicer has actual knowledge of any Reportable Event. The
Sub-Servicer shall reasonably cooperate with the Master Servicer to enable
the Master Servicer to fulfill its obligations under Section 11.07 of the
Pooling and Servicing Agreement (including without limitation, the
preparation of Form 8-K Disclosure Information and consultation with the
Master Servicer with respect to any Reportable Event), and the Master
Servicer shall provide such direction and notice as may be reasonably
required under the circumstances to enable the Sub-Servicer to provide
such cooperation.
(48) Section 11.09. The Sub-Servicer shall reasonably cooperate with
the Master Servicer to enable the Master Servicer to fulfill all of the
obligations of the Master Servicer under Section 11.09 of the Pooling and
Servicing Agreement, and the Master Servicer shall provide such direction
and notice as may be reasonably required under the circumstances to enable
the Sub-Servicer to provide such cooperation. The Sub-Servicer shall
provide to the Master Servicer and the other parties to the Pooling and
Servicing Agreement the reports and other information called for in the
Pooling and Servicing Agreement no later than March 10th of each year
commencing in 2008 except in any year pursuant to which the Trust is not
subject to the reporting requirements of the Exchange Act in which case
such reports shall be delivered five (5) Business Days prior to the date
that the Master Servicer must deliver such information and/or reports
under the Pooling and Serving Agreement.
(49) Section 11.10. The Sub-Servicer shall reasonably cooperate with
the Master Servicer to enable the Master Servicer to fulfill all of the
obligations of the Master Servicer under Section 11.10 of the Pooling and
Servicing Agreement, and the Master Servicer shall provide such direction
and notice as may be reasonably required under the circumstances to enable
the Sub-Servicer to provide such cooperation. The Sub-Servicer shall
provide to the parties set forth in Section 11.11 of the Pooling and
Servicing Agreement all the reports required of a Sub-Servicer and/or a
Reporting Servicer under Section 11.10 of the Pooling and Servicing
Agreement on or before March 10 of each year commencing 2008 except in any
year pursuant to which the Trust is not subject to the reporting
requirements of the Exchange Act in which case such reports shall be
delivered five (5) Business Days prior to the date that the Master
Servicer must deliver such information and/or reports under the Pooling
and Serving Agreement.
(50) Section 11.11. The accountant's report referenced in Section
11.11 of the Pooling and Servicing Agreement shall be delivered by the
Sub-Servicer (without regarding whether the Sub-Servicer is a Servicing
Function Participant) by March 10th of each year, beginning March 2008,
except with respect to years in which Trust is not subject to the
reporting requirements of the Exchange Act in which case such information
and/or reports shall be delivered to the Master Servicer five (5) Business
Days prior to the date that the Master Servicer must deliver such
information and/or reports under the Pooling and Servicing Agreement. The
report shall be delivered to all the parties specified in Section 11.11 of
the Pooling and Servicing Agreement, and if the Sub-Servicer is not a
Servicing Function Participant, such report shall be delivered only to the
Master Servicer.
(51) Section 11.12. References to the Servicing Function Participant
shall be references to the Sub-Servicer. References to each of the
Trustee, the Master Servicer and the Special Servicer shall remain a
reference to each such party.
Section 3.02 Merger or Consolidation of the Sub-Servicer.
The Sub-Servicer shall keep in full effect its existence, rights and
franchises as a limited partnership, limited liability company or corporation
under the laws of the state of its organization or, as applicable, a national
banking association under the laws of the United States of America.
Any Person into which the Sub-Servicer may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Sub-Servicer shall be a party, or any Person
succeeding to the business of the Sub-Servicer, shall be the successor of the
Sub-Servicer 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, that the successor or surviving
Person (i) must be a company whose business includes the origination or
servicing of mortgage loans and shall be authorized to transact business in the
state or states in which the related Mortgaged Properties it is to service are
situated (unless such authorization is not required), (ii) must be reasonably
acceptable to the Master Servicer, and (iii) shall assume in writing the
obligations of the Sub-Servicer under this Agreement.
Section 3.03 Limitation on Liability of the Sub-Servicer and Others.
Neither the Sub-Servicer nor any of the officers, employees or
agents of the Sub-Servicer shall be under any liability to the Master Servicer
for any action taken or for refraining from the taking of any action in good
faith pursuant to this Agreement, or for errors in judgment; provided, however,
that this provision shall not protect the Sub-Servicer or any such person
against liability to the Master Servicer for any breach of a representation or
warranty made herein, or failure to perform its obligations in strict compliance
with the servicing standards, or any liability which would otherwise be imposed
by reason of any breach of the terms and conditions of this Agreement, or
against any expense or liability specifically required to be borne by such party
without right of reimbursement pursuant to the terms hereof, or against any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith, or negligence in the performance of obligations or duties hereunder. The
Sub-Servicer and any officer, employee or agent of the Sub-Servicer may rely in
good faith on any document of any kind, prima facie, properly executed and
submitted by any Person respecting any matters arising hereunder. The
Sub-Servicer shall not be under any obligation to appear in, prosecute or defend
any legal action unless such action is related to its duties under this
Agreement and (a) it is specifically required to bear the costs of such legal
action or (b) in its opinion does not involve it in any ultimate expense or
liability; provided, however, that the Sub-Servicer may, with the consent of the
Master Servicer, undertake any such action which it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities for which
the Master Servicer will be liable and the Sub-Servicer shall be entitled to be
reimbursed therefor from the Master Servicer upon written demand.
Section 3.04 Sub-Servicer's Resignation.
The Sub-Servicer may resign from the obligations and duties hereby
imposed on it at any time with thirty (30) days written notice to the Master
Servicer.
Section 3.05 No Transfer or Assignment of Servicing.
With respect to the responsibility of the Sub-Servicer to service
the Mortgage Loans hereunder, the Sub-Servicer acknowledges that the Master
Servicer has acted in reliance upon the Sub-Servicer's independent status, the
adequacy of its servicing facilities, plant, personnel, records and procedures,
its integrity, reputation and financial standing and the continuance thereof.
Subject to Section 3.01(c)(34) of this Agreement, without in any way limiting
the generality of this Section 3.05, the Sub-Servicer shall neither assign nor
transfer this Agreement or the servicing hereunder nor delegate its rights or
duties hereunder or any portion thereof, or sell or otherwise dispose of all or
substantially all of its property or assets, without the prior written approval
of the Master Servicer, which consent will not be unreasonably withheld or
delayed. For the avoidance of doubt, nothing in this Section 3.05 shall prohibit
the Sub-Servicer from utilizing vendors and/or sub-contractors on the terms and
conditions set forth in this Agreement.
Section 3.06 Indemnification.
The Master Servicer and the Sub-Servicer each agrees to and hereby
does indemnify and hold harmless the Master Servicer, in the case of the
Sub-Servicer, and the Sub-Servicer, in the case of the Master Servicer
(including any of their partners, directors, officers, employees or agents) from
and against any and all liability, claim, loss, out-of-pocket cost (including
reasonable attorneys' fees), penalty, expense or damage of the Master Servicer,
in the case of the Sub-Servicer (including without limitation any failure by the
Sub-Servicer to comply with Regulation AB, and the Sub-Servicer, in the case of
the Master Servicer (including any of their partners, directors, officers,
employees or agents) resulting from (i) any breach by the indemnitor of a
representation or warranty made by it herein or (ii) any willful misfeasance,
bad faith or negligence by the indemnitor in the performance of its obligations
or duties hereunder or by reason of reckless disregard of such obligations and
duties. Each indemnified party hereunder shall give prompt written notice to the
indemnitor of matters which may give rise to the liability of such indemnitor
hereunder; provided, however, that failure to give such notice shall not relieve
the indemnitor of any liability except to the extent of actual prejudice. To the
extent the Master Servicer is entitled to indemnification from the Trust for any
claim, legal action, investigation or proceeding giving rise to an
indemnification obligation to the Sub-Servicer, the Master Servicer will be
obligated to indemnify the Sub-Servicer only as, when and to the extent,
indemnified by the Trust. This Section 3.06 shall survive the termination of
this Agreement and the termination or resignation of the Master Servicer or the
Sub-Servicer. The Master Servicer shall use its good faith and commercially
reasonable efforts to enforce it rights of indemnification as they pertain to
the Sub-Servicer under the Pooling and Servicing Agreement.
Section 3.07 Companion Loans.
Notwithstanding anything contained in this Agreement to the
contrary, the Sub-Servicer shall perform all of the remittance, reporting and
correspondence duties allocated to the Master Servicer under the Pooling and
Servicing Agreement (including without limitation, Section 3.27, Section 3.28
and Section 3.29 thereof) (and related intercreditor agreement, co-lender
agreement or similar agreement) with respect to a Companion Loan related to a
Mortgage Loan in the related manner and time frames called for therein. In
connection with any remittances to an applicable holder of a Companion Loan(or
its designee), the Sub-Servicer shall promptly provide written notice to the
Servicer and shall promptly send to the Master Servicer a copy of any written
correspondence sent to the related holder of the Companion Loan. To the extent
not inconsistent with its duties under the Pooling and Servicing Agreement, the
Master Servicer shall reasonably cooperate with the Sub-Servicer in
corresponding or otherwise dealing with such holder(s), including to enforce any
rights or remedies or otherwise pursue any payment obligation under the related
co-lender agreement(s).
Section 3.08 Limited Advancing Obligations.
For the avoidance of doubt, other than as set forth in Section
3.01(c)(6) of this Agreement the Sub-Servicer shall have no obligations to make
any Advance.
ARTICLE IV
DEFAULT
Section 4.01 Events of Default.
"Event of Default", wherever used herein, unless the context
otherwise requires, means any one of the following events:
(a) any failure by the Sub-Servicer to deposit into the Sub-Servicer
Custodial Account, the Sub-Servicer Whole Loan Custodial Account, any Servicing
Account, any REO Account or any Reserve Account that continues unremedied for
three Business Days following the date on which such deposit was first required
to be made, or to deposit into, or to remit to the Master Servicer for deposit
into the Certificate Account on the dates and at the times required by this
Agreement, any amount required to be so deposited or remitted under this
Agreement; or
(b) any failure on the part of the Sub-Servicer to observe or
perform its obligations and duties in accordance with Section 3.07 of the
Pooling and Servicing Agreement; or
(c) any failure on the part of the Sub-Servicer to (a) timely
provide to the Master Servicer the information called for on Exhibit D attached
hereto as required by Section 3.01(c)(39) of this Agreement, to the extent the
obtaining of such information which is a part of such report is within the
Sub-Servicer's control and such failure remains uncured for five (5) Business
Days after the Sub-Servicer has received written notice from the Master Servicer
of such failure, (b) timely provide to the Master Servicer the Collection Report
and such failure continues unremedied for one (1) Business Day after notice;
provided that if the failure of the Sub-Servicer to provide the Master Servicer
the Collection Report was the result of any act of force majeure or other act
beyond the control of Sub-Servicer, no Event of Default will result, or (c) in
any way comply with Section 3.01(c)(41) through Section 3.01(c)(51) of this
Agreement; or
(d) the Sub-Servicer shall fail two times in one year after notice
by the Master Servicer which is not remedied by the end of the related Business
Day to timely provide to the Master Servicer any report required by this
Agreement to be provided to the Master Servicer, to the extent the obtaining of
such information which is a part of such report is within the Sub-Servicer's
control, provided that if any such failure was the result of any act of force
majeure or other act beyond the control of the Sub-Servicer no Event of Default
will result; or
(e) any failure on the part of the Sub-Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on the
part of the Sub-Servicer contained in this Agreement which continues unremedied
for a period of thirty (30) days (ten (10) days in the case of payment of
insurance premiums) after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Sub-Servicer by
the Master Servicer; or
(f) any breach on the part of the Sub-Servicer of any representation
or warranty contained in Section 2.06(a) of the Pooling and Servicing Agreement
as modified by Section 3.01(c)(2) of this Agreement (as well as the References
Modification) which materially and adversely affects the interests of the Master
Servicer or any Class of Certificateholders and which continues unremedied for a
period of thirty (30) days after the date on which notice of such breach,
requiring the same to be remedied, shall have been given to the Sub-Servicer by
the Master Servicer; or
(g) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any present or
future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Sub-Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of
sixty (60) days; or
(h) the Sub-Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Sub-Servicer or of or
relating to all or substantially all of its property; or
(i) the Sub-Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the foregoing; or
(j) the Sub-Servicer receives actual knowledge that (i) any Rating
Agency has qualified, downgraded or withdrawn its rating or ratings on one or
more Classes of Certificates, or (ii) that any Rating Agency has placed one or
more Classes of Certificates on "rating watch negative" in contemplation of a
rating downgrade or withdrawal (and such "rating watch negative" placement shall
not have been withdrawn by any Rating Agency within sixty (60) days of the date
the Sub-Servicer obtained such actual knowledge), in the case of either of
clauses (i) or (ii), citing servicing concerns with the Sub-Servicer as the sole
or material factor in such action; or
(k) [Reserved]; or
(l) [Reserved]; or
(m) the Sub-Servicer shall assign or transfer or attempt to assign
or transfer all or part of its rights and obligations hereunder except as
permitted by this Agreement.
If any Event of Default shall occur and be continuing, then, and in
each and every such case, so long as such Event of Default shall not have been
remedied within any applicable cure period, the Master Servicer may terminate,
by notice in writing to the Sub-Servicer, all of the rights and obligations of
the Sub-Servicer as the Sub-Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof. From and after the receipt by the
Sub-Servicer of such written notice, all authority and power of the Sub-Servicer
under this Agreement, whether with respect to the Mortgage Loans or otherwise,
shall pass to and be vested in the Master Servicer pursuant to and under this
Section, and, without limitation, the Master Servicer is hereby authorized and
empowered to execute and deliver, on behalf of and at the expense of the
Sub-Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Sub-Servicer agrees that if it is
terminated pursuant to this Section, it shall promptly (and in any event no
later than five (5) Business Days subsequent to its receipt of the notice of
termination) provide the Master Servicer with all documents and records
(including, without limitation, those in electronic form) requested by it to
enable it to assume the Sub-Servicer's functions hereunder, and shall cooperate
with the Master Servicer in effecting the termination of the Sub-Servicer's
responsibilities and rights hereunder and the assumption by a successor of the
Sub-Servicer's obligations hereunder, including, without limitation, the
transfer within one Business Day to the Master Servicer for administration by it
of all cash amounts which shall at the time be or should have been credited by
the Sub-Servicer to its Sub-Servicer Custodial Account, the Certificate Account,
any Servicing Account, any REO Account and any Reserve Account, or thereafter be
received with respect to the Mortgage Loans or any REO Property (provided,
however, that the Sub-Servicer shall continue to be entitled to receive all
amounts accrued or owing to it under this Agreement on or prior to the date of
such termination, and it and its directors, officers, employees and agents shall
continue to be entitled to the benefits of Section 3.03 of this Agreement
notwithstanding any such termination).
In addition to any other rights the Master Servicer may have
hereunder, if the Sub-Servicer fails to remit to the Master Servicer any amounts
when required to be remitted hereunder, the Sub-Servicer shall pay to the Master
Servicer interest on the amount of such late remittance at the Reimbursement
Rate plus three percent (3%), applied on a per diem basis for each day such
remittance is late (i.e., said per annum rate divided by 365 multiplied by the
number of days late); but in no event shall such interest be greater than the
maximum amount permitted by law.
Section 4.02 Waiver of Defaults.
The Master Servicer may waive any default by the Sub-Servicer in the
performance of its obligations hereunder and its consequences. Upon any such
waiver of a past default, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
Section 4.03 Other Remedies of Master Servicer.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Master Servicer, in addition
to the rights specified in Section 4.01, shall have the right, in its own name,
to take all actions now or hereafter existing at law, in equity or by statute to
enforce its rights and remedies (including the institution and prosecution of
all judicial, administrative and other proceedings and the filing 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 V
TERMINATION
Section 5.01 Termination.
Except as otherwise specifically set forth herein or in Section 3.22
of the Pooling and Servicing Agreement, the rights, obligations and
responsibilities of the Sub-Servicer shall terminate (without payment of any
penalty or termination fee) (i) upon the later of the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan and
the disposition of all REO Property and the remittance of all funds due
hereunder; (ii) by mutual consent of the Sub-Servicer and the Master Servicer in
writing; (iii) at the option of any purchaser of one or more Mortgage Loans
pursuant to the Pooling and Servicing Agreement, upon such purchase and only
with respect to such purchased Mortgage Loan or Mortgage Loans; or (iv) upon
termination of the Pooling and Servicing Agreement. Any notice of termination
shall be in writing and delivered to the Sub-Servicer as provided in Section
6.05 of this Agreement.
Section 5.02 Termination of Duties with Respect to Specially
Serviced Loans.
At such time as any Mortgage Loan becomes a Specially Serviced Loan,
the obligations and duties of the Sub-Servicer set forth herein with respect to
such Specially Serviced Loan that are required to be performed by the Special
Servicer under the Pooling and Servicing Agreement shall cease except that the
Sub-Servicer shall continue to earn its Sub-Servicing Fee with respect to the
related Specially Serviced Loan; provided, however, that although duties of the
Sub-Servicer shall terminate to the extent transferred to the Special Servicer,
the Sub-Servicer shall retain the Mortgage Loans on its computer systems so long
as such Mortgage Loans are Specially Serviced Loans. Any such Mortgage Loan
retained on the computer systems of the Sub-Servicer shall be subject to the
rights of the Special Servicer while such Mortgage Loan is a Specially Serviced
Loan. In addition, the Sub-Servicer shall continue to perform all of its duties
hereunder with respect to the Specially Serviced Loans that are not required to
be performed by the Special Servicer pursuant to the Pooling and Servicing
Agreement. If a Specially Serviced Loan becomes a Corrected Serviced Loan, the
Sub-Servicer shall commence servicing such Corrected Serviced Loan pursuant to
the terms of this Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Successor to the Sub-Servicer.
Prior to termination of the Sub-Servicer's responsibilities and
duties under this Agreement pursuant to Section 3.04, 4.01 or 5.01 of this
Agreement, the Master Servicer shall (i) succeed to and assume all of the
Sub-Servicer's responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor which satisfies the criteria for a
successor Sub-Servicer in Section 3.02 of this Agreement and which shall succeed
to all rights and assume all of the responsibilities, duties and liabilities of
the Sub-Servicer under this Agreement accruing following the termination of the
Sub-Servicer's responsibilities, duties and liabilities under this Agreement.
Section 6.02 Financial Statements.
The Sub-Servicer shall deliver annually, no later than April 25 of
each year, to the Master Servicer the most recent publicly available financial
statements of the Sub-Servicer or its corporate parent and, upon the request of
the Master Servicer, make available other records relevant to the performance of
the Sub-Servicer's obligations hereunder.
Section 6.03 Closing.
The closing for the commencement of the Sub-Servicer to perform the
servicing responsibilities under this Agreement with respect to the Mortgage
Loans shall take place on the Closing Date. The closing shall be either by
telephone, confirmed by letter or wire or via facsimile and/or e-mail as the
parties shall agree.
The closing shall be subject to the execution and delivery of the
Pooling and Servicing Agreement by the parties thereto.
Section 6.04 Closing Documents.
The Closing Documents shall consist of all of the following
documents:
(a) to be provided by the Sub-Servicer:
(1) this Agreement executed by the Sub-Servicer;
(2) an Officer's Certificate of the Sub-Servicer, dated the
Closing Date and substantially in the form of Exhibit B hereto,
including all attachments thereto;
(3) the account certifications in the form of Exhibit E hereto
required by Sections 3.01(c)(5), (7) and (9) of this Agreement,
fully completed; and
(b) to be provided by the Master Servicer:
(1) this Agreement executed by the Master Servicer; and
(2) the mortgage loan schedule, with one copy to be attached
to each counterpart of this Agreement as Exhibit A hereto; and
(3) the Pooling and Servicing Agreement substantially in the
form of Exhibit C hereto.
Section 6.05 Notices.
All demands, notices, consents and communications hereunder shall be
in writing and shall be deemed to have been duly given when delivered to the
following addresses:
(i) if to the Master Servicer:
Bank of America, National Association
Capital Markets Servicing Group
000 Xxxx Xxxxx Xxxxxx
Xxxxx 000
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Fax No. (000) 000-0000
Attention: Servicing Manager
Reference: Banc of America Commercial Mortgage Inc.
Series 2007- 3
with copy to:
Xxxxx X. XxXxxx, Esq.
Cadwalader, Xxxxxxxxxx & Xxxx, LLP
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
(ii) if to the Sub-Servicer
Hypo Real Estate Capital Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxxx, Managing Director
with a copy to:
Hypo Real Estate Capital Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx D'Arcy, Director
and
Xxxxxxx XxXxxxx, Chief Legal Officer
Section 6.06 Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction as to the Mortgage Loans shall not
invalidate or render unenforceable such provision in any other jurisdiction. To
the extent permitted by applicable law, the parties hereto waive any provision
of law which prohibits or renders void or unenforceable any provision hereof. If
the invalidity of any part, provision, representation or warranty of this
Agreement shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate, in good faith, to
develop a structure the economic effect of which is nearly as possible the same
as the economic effect of this Agreement without regard to such invalidity.
Section 6.07 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 6.08 Governing Law.
This Agreement shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with the laws of the State of New
York, except to the extent preempted by Federal Law.
Section 6.09 [Reserved].
Section 6.10 Intention of the Parties.
It is the intention of the parties that the Master Servicer is
conveying, and the Sub-Servicer is receiving, only a contract for servicing the
Mortgage Loans. Accordingly, the parties hereby acknowledge that the Trustee
remains the sole and absolute beneficial owner of the Mortgage Loans and all
rights related thereto.
Section 6.11 Third Party Beneficiary.
The Depositor and the Trustee, for the benefit of the
Certificateholders, shall be a third party beneficiary under this Agreement,
provided that, except to the extent the Trustee or its designee assumes the
obligations of the Master Servicer hereunder as contemplated by Section 6.12 of
this Agreement, none of the Depositor, the Trustee, the Trust Fund, any
successor Master Servicer or any Certificateholder shall have any duties under
this Agreement or any liabilities arising herefrom.
Section 6.12 Successors and Assigns; Assignment of Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Sub-Servicer and the Master Servicer and the respective
successors and assigns of the Sub-Servicer and the Master Servicer. This
Agreement shall not be assigned, pledged or hypothecated by the Sub-Servicer to
a third party except as otherwise specifically provided for herein. If the
Master Servicer shall for any reason no longer act in such capacity under the
Pooling and Servicing Agreement, the Trustee or its designee may thereupon
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Master Servicer under this Agreement.
Section 6.13 Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
Section 6.14 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
Section 6.15 General Interpretive Principles.
The article and section headings are for convenience of a reference
only, and shall not limit or otherwise affect the meaning hereof.
Section 6.16 Complete Agreement.
This Agreement embodies the complete agreement between the parties
regarding the subject matter hereof and may not be varied or terminated except
by a written agreement conforming to the provisions of Section 6.18 of this
Agreement. All prior negotiations or representations of the parties are merged
into this Agreement and shall have no force or effect unless expressly stated
herein.
Section 6.17 Further Agreement.
The Sub-Servicer and the Master Servicer each agree to execute and
deliver to the other such reasonable and appropriate additional documents,
instruments or agreements as may be necessary or appropriate to effectuate the
purposes of this Agreement.
Section 6.18 Amendments.
This Agreement may only be amended with the consent of the
Sub-Servicer and the Master Servicer. No amendment to the Pooling and Servicing
Agreement that purports to change the rights or obligations of the Sub-Servicer
hereunder shall be effective against the Sub-Servicer without the express
written consent of the Sub-Servicer.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the Sub-Servicer and the Master Servicer have
caused their names to be signed hereto by their respective officers thereunto
duly authorized as of the date first above written.
HYPO REAL ESTATE CAPITAL CORPORATION
By: /s/ Xxxxxxx D'Arcy
--------------------------------------
Name: Xxxxxxx D'Arcy
Title: Director
By: /s/ Xxxxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Director
BANK OF AMERICA, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Principal
EXHIBIT A
MORTGAGE LOAN SCHEDULE
Sub-Servicing Fee Rate
Loan Number Property Name Cut-off Balance in Basis Points
----------- ----------------------------------- --------------- ----------------------
104 Xxxxxxxx Xxxx Multifamily Portfolio 175,000,000.00 1
101 Renaissance Mayflower Hotel 200,000,000.00 1
102 Metropolis Shopping Center 86,000,000.00 1
EXHIBIT B
SUB-SERVICER'S OFFICER'S CERTIFICATE
I, [______________________________], hereby certify that I am the
duly elected [__________________________] of [Sub-Servicer], a
[__________________], organized under the laws of [_____________________] (the
"Sub-Servicer") and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete
copy of the [__________________] of the Sub-Servicer which are
in full force and effect on the date hereof and which have
been in effect without amendment, waiver, rescission or
modification since [_______________________________].
2. Attached hereto as Exhibit 2 is a true, correct and complete
copy of the by-laws of the Sub-Servicer which are in effect on
the date hereof and which have been in effect without
amendment, waiver, rescission or modification since
[____________].
3. Attached hereto as Exhibit 3 is an original certificate of the
[__________________] of the Sub-Servicer, dated as of [_____
__], 200[__], and no event has occurred since the date thereof
which would impair such standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete
copy of the resolutions of the Board of Directors of the
Sub-Servicer authorizing the Sub-Servicer to execute and
deliver the Sub-Servicing Agreement, dated as of [_____ __],
200[__] (the "Sub-Servicing Agreement"), by and between the
Sub-Servicer and Bank of America, National Association and
such resolutions are in effect on the date hereof and have
been in effect without amendment, waiver, rescission or
modification since [_______________].
5. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of the Sub-Servicer, signed the
Sub-Servicing Agreement and any other document delivered prior
hereto or on the date hereof in connection with the
Sub-Servicing Agreement, was, at the respective times of such
signing and delivery, and is now, a duly elected or appointed,
qualified and acting officer or representative of the
Sub-Servicer, who holds the office set forth opposite his or
her name on Exhibit 5, and the signatures of such persons
appearing on such documents are their genuine signatures.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Sub-Servicer.
Dated: [__________________] By:
------------------------------------
Name: [______________________]
Title: [Vice] President
[Seal]
I, [_______________________], an [Assistant] Secretary of
[Sub-Servicer], hereby certify that
[___________________________] is the duly elected, qualified and
acting [Vice] President of the Sub-Servicer and that the signature appearing
above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: [__________________] By:
------------------------------------
Name: [______________________]
Title: [Assistant] Secretary
EXHIBIT 5
to
Sub-Servicer's Officer's Certificate
Name Title Signature
----------------------------
----------------------------
----------------------------
----------------------------
EXHIBIT C
POOLING AND SERVICING AGREEMENT
EXHIBIT D
FORM OF ADDITIONAL REPORTS
Quarterly Tax Monitoring Report
Deal: BANC OF AMERICA COMMERCIAL MORTGAGE INC. COMMERCIAL MORTGAGE PASS THROUGH
CERTIFICATES, SERIES 2007-3
Sub-Servicer:
Period Ending:
Master Parcel Type Next Tax Amount Installment
Loan # ColName Number of Tax Freq of Disb Due Date Due Dates
------ ------- ------ ------ ------------ -------- ------ -----------
Certified By: _____________________
Title: _____________________
Quarterly UCC Monitoring Report
Deal: BANC OF AMERICA COMMERCIAL MORTGAGE INC. COMMERCIAL MORTGAGE PASS THROUGH
CERTIFICATES, SERIES 2007-3
Sub-Servicer:
Period Ending:
Master Original Original Current Current Expiration
Loan # Filing Type File Date File # File Date File No. Date
------ ----------- --------- -------- --------- -------- ----------
Certified By: _____________________
Title: _____________________
Quarterly Insurance Monitoring Report
Deal: BANC OF AMERICA COMMERCIAL MORTGAGE INC. COMMERCIAL MORTGAGE PASS THROUGH
CERTIFICATES, SERIES 2007-3
Sub-Servicer:
Period Ending:
Terrorism
Master Coverage Expiration Amount of Terrorism Terrorism Deductible
Servicer Master Loan # Type Carrier Policy # Date Coverage Coverage (Y/N) Coverage Amount Amount
-------- ------------- -------- ------- -------- ---------- --------- -------------- --------------- ----------
Certified By: _____________________
Title: _____________________
EXHIBIT E
FORM OF ACCOUNT CERTIFICATION
Securitization:_________________________________________________________________
Sub Servicer:___________________________________________________________________
______ New Account ______ Change of Account
Information
Indicate purpose of account (check all that apply):
______ Principal & Interest ______ Deposit Clearing
______ Taxes & Insurance ______ Disbursement Clearing
______ Reserves (non-interest bearing) ______ Suspense
______ Reserves (interest bearing)
Account Number:_________________________________________________________________
Account Name:___________________________________________________________________
Depository Institution (and Branch):
Name:_____________________________________________________________________
Street:___________________________________________________________________
City, State, Zip:_________________________________________________________
Rating Agency:_____________________ Rating:_______________________________
Please note that the name of the account must follow the guideline
specifications detailed in the applicable agreement.
Prepared by:____________________________________________________________________
Signature:______________________________________________________________________
Title:__________________________________________________________________________
Date:___________________________________________________________________________
Telephone:_______________________________ Fax________________________________
EXHIBIT F
FORM OF
COLLECTION REPORT
2007-3
(Deal Name)
(Subservicer Name)
(Reporting Period)
(Collection Period)
(L3) (L8) (L10) (L6) (L25) (L24) (L23) (L28)
--------------- ----------- ------------ ----------------- ----------------- ------------- --------- --------- -----------
Master Servicer Subservicer Paid to Date Current Note Rate Scheduled Total Scheduled Scheduled Other
Loan Number Loan Number Principal Balance Scheduled P&I Principal Interest Principal
Due Payment Payment Adjustments
--------------- ----------- ------------ ----------------- ----------------- ------------- --------- --------- -----------
(L27) (I30) (I31) (L14)
--------------- -------------- ----------- ----------- ----------- ----------- ----------- -------------- ------------
Master Servicer Unscheduled Prepayment Prepayment Subservicer Subservicer Subservicer Assumption Fee Late Charges
Loan Number Principal Penalty/Yld Interest Fee Rate Service Fee Remittance
Collections Maint Rec'd Excess Amount
(Curtailments) (Shortfall)
--------------- -------------- ----------- ----------- ----------- ----------- ----------- -------------- ------------
--------------- -------- --------- -------- -----------
Master Servicer Default Actual Actual Actual
Loan Number Interest Principal Interest Subservicer
Payment Payment Service Fee
--------------- -------- --------- -------- -----------
EXHIBIT G
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FORM OF CERTIFICATION TO BE
PROVIDED TO MASTER SERVICER
Re: Banc of America Commercial Mortgage Trust Commercial Mortgage
Pass-Through Certificates, Series 2007- 3
-------------------------------------------------------------
I, a[n] [title] of [Hypo Real Estate Capital Corporation], on behalf of
[Hypo Real Estate Capital Corporation], certify to Bank of America, National
Association, as Master Servicer, and its officers, directors and affiliates, and
with the knowledge and intent that they will rely upon this certification, that:
(a) Based on my knowledge, all reports containing distribution,
servicing and other information (the "Servicing Reports") required to be
submitted by the Sub-Servicer to the Master Servicer under that certain
Sub-Servicing Agreement, dated July 1, 2007, by and between Bank of America,
National Association, as master servicer and [Hypo Real Estate Capital
Corporation], as sub-servicer (the "Sub-Servicing Agreement") in respect of
periods included in calendar year 200_ have been submitted to the Master
Servicer;
(b) Based on my knowledge, the information contained in the
Servicing Reports, taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made, not
misleading with respect to the period covered by the servicing reports;
(c) I am responsible for reviewing the activities performed by the
Sub-Servicer under the Sub-Servicing Agreement and based upon my knowledge and
the annual compliance reviews conducted in preparing the servicer compliance
statements required under Item 1123 of Regulation AB (which requirements may
change after the date hereof) with respect to the Sub-Servicer, and except as
disclosed in the compliance certificate delivered by the Master Servicer under
Section 11.10 of the Pooling and Servicing Agreement, the Sub-Servicer has
fulfilled its obligations under the Sub-Servicing Agreement in all material
respects;
(d) The accountant's report delivered pursuant to Section
3.01(c)(50) of the Sub-Servicing Agreement as discloses all significant
deficiencies relating to the Sub-Servicer's compliance with the Relevant
Servicing Criteria.
(e) All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation reports on
assessment of compliance with servicing criteria for asset-backed securities
with respect to the Sub-Servicer required pursuant to the Sub-Servicing
Agreement, to the extent such services performed by the Sub-Servicer constitute
Relevant Servicing Criteria to be included in this certification in accordance
with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 (which
requirements may change after the date hereof), have been included as an exhibit
to this certification, except as otherwise disclosed in this certification. Any
material instances of noncompliance described in such reports have been
disclosed in this certification.
This certification may be referred to and relied upon by the Master
Servicer in providing any certifications, and otherwise performing its
obligations under, Section 11.06 of the Pooling and Servicing Agreement. This
certificate may not be relied upon by the Master Servicer for any other purpose
and may not be used, circulated to, or relied upon by any other person.
Date: _________________________
Hypo Real Estate Capital Corporation
_______________________________
[Signature]
[Title]
EXHIBIT H
---------
FORM OF SEMI-ANNUAL SERVICING CERTIFICATION
Sub-Servicer:_________
RE: Series__________
Pursuant to the Sub-Servicing Agreement(s) between Bank of America, National
Association and [Sub-Servicer], we certify to the best of our knowledge with
respect to each mortgage loan serviced by us for Bank of America, National
Association that, as of the period ending ____________________, except as
otherwise noted below:
All taxes, assessments and other governmental charges levied against the
mortgaged premises, ground rents payable with respect to the mortgaged premises,
if any, which would be delinquent if not paid, have been paid.
Based on [Sub-Servicer's] monitoring of the insurance in accordance with the
Servicing Standard, all required insurance policies are in full force and effect
on the mortgaged premises in the form and amount and with the coverage required
by the Sub-Servicing Agreement(s).
All necessary action has been taken to continue all UCC Financing Statements in
favor of the originator of each mortgage loan or in favor of any assignee prior
to the expiration of such UCC Financing Statements.
All reserves are maintained and disbursed in accordance with the loan documents
and no obligation for which a reserve is held has not been completed within the
time required by the applicable document.
If there are any exceptions to any of the items required in any of the
above-referenced paragraphs, such exceptions shall be noted in a schedule
attached hereto substantially in the form of Exhibit D to the Sub-Servicing
Agreement.
EXCEPTIONS:______________________________________________
_______________________________________ ______________________________________
Servicing Officer Date
